J-A26037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

EUGENIO HERNANDEZ

                            Appellant               No. 2038 MDA 2014

             Appeal from the PCRA Order of November 20, 2014
               In the Court of Common Pleas of Lebanon County
            Criminal Division at Nos.:  CP-38-CR-0000546-2002
                                        CP-38-CR-0000797-2001
                                        CP-38-CR-0000805-2001
                                        CP-38-CR-0000806-2001
                                        CP-38-CR-0000807-2001
                                        CP-38-CR-0000808-2001


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 06, 2015

       Eugenio Hernandez appeals the November 20, 2014 order dismissing

his petition for writ of habeas corpus, which the PCRA court considered as a

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. We affirm.

       Prior panels of this Court have summarized the underlying factual and

procedural history of this case as follows:

       On numerous occasions between October 11, 2000 and February
       15, 2001, detectives and police officers of the Lebanon City Drug
       Task Force sent confidential informants Jason Schlegal and
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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     Raymond Norton to purchase drugs from [Hernandez], who sold
     them several “rocks” of crack cocaine. On February 16, 2001,
     the Drug Task Force executed a search warrant at 711 Chestnut
     Street, the address of an apartment rented by [Hernandez]. The
     authorities found various ziplock baggies containing cocaine
     residue, drug sale records, and other drug paraphernalia
     associated with [Hernandez’] cocaine trafficking.

Commonwealth v. Hernandez, 305 MDA 2003, slip op. at 1-2 (Pa. Super.

Dec. 31, 2003).

     On September 6, 2002, a jury convicted Hernandez of several
     counts of possession of controlled substances, possession of
     paraphernalia, possession with intent to deliver, conspiracy, and
     criminal use of a communication facility. On September 18,
     2002, the trial court sentenced Hernandez to an aggregate 64 to
     174 months’ incarceration. This Court affirmed the judgment of
     sentence on December 31, 2003. Hernandez did not file a
     petition for allowance of appeal with our Supreme Court.

     On January 21, 2005, Hernandez filed a timely pro se PCRA
     petition. The PCRA court appointed counsel from the Public
     Defender’s Office of Lebanon County, Brian Deiderick, to file an
     amended PCRA petition in April 2005. Hernandez wrote Attorney
     Deiderick a letter listing the issues he wanted to raise. Attorney
     Deiderick, however, was subsequently hospitalized and the letter
     was inadvertently misplaced in another client’s file. The PCRA
     court dismissed Hernandez’s pro se petition without a hearing.
     Upon realizing his error, Attorney Deiderick filed an application
     with this Court to file an amended PCRA petition nunc pro tunc,
     which this Court granted in an unpublished memorandum filed
     November 14, 2006. Commonwealth v. Hernandez, 915 A.2d
     143 (Pa. Super. 2006). The PCRA court apparently did not
     receive a copy of this Court’s memorandum for several months.
     In June of 2007, the PCRA court directed Hernandez to file a
     nunc pro tunc amended PCRA petition.

     On July 12, 2007, Attorney Deiderick filed an amended PCRA
     petition raising nine claims of error. On September 5, 2007, the
     PCRA court entered an opinion and order pursuant to
     Pa.R.Crim.P. 907 indicating its intention to dismiss the first
     seven claims without an evidentiary hearing, but ordering a
     hearing on the last two claims. Attorney Deiderick did not


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      respond to the notice of intent and the PCRA court dismissed the
      first seven claims. On December 14, 2007, the PCRA court held
      a hearing on the remaining claims, and on February 5, 2008, the
      PCRA court entered an order dismissing Hernandez’ amended
      PCRA petition.

Commonwealth v. Hernandez, 500 MDA 2008 slip. op. at 2-3 (Pa. Super.

Aug. 21, 2009).

      We affirmed the PCRA court’s dismissal of Hernandez’ amended PCRA

petition on August 21, 2009.      The Pennsylvania Supreme Court denied

Hernandez’ petition for allowance of appeal on February 22, 2010. On March

17, 2010, Hernandez filed a petition for recidivism risk reduction incentive

program. The PCRA court treated this petition as a second PCRA petition,

and denied Hernandez’ petition on April 21, 2010. Hernandez did not appeal

this denial.

      On October 3, 2014, Hernandez filed a pro se document captioned as a

“Writ of Habeas Corpus Ad Subjiciendum.”       Because Hernandez sought in

this habeas corpus petition a modification of his sentence, the PCRA court

treated it as a third PCRA petition.    On October 21, 2014, the PCRA court

issued an order outlining its intention to dismiss Hernandez’ petition as

untimely. Although the PCRA court had yet to issue an order dismissing the

petition, Hernandez filed a notice of appeal on November 10, 2014.       On

November 20, 2014, the PCRA court filed an order dismissing the petition

and recognizing that Hernandez already had filed an appeal. The PCRA court

directed that this case be sent to this Court and stated that it was relying




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upon its memorandum opinion filed with its notice of intent to dismiss in lieu

of a Pa.R.A.P. 1925(a) opinion.

      Hernandez raises one claim on appeal: “Whether a claim that

[Hernandez’] sentence is unconstitutional in violation of the mandatory

minimum, as pronounced by [Commonwealth v.] Munday, [78 A.3d 661

(Pa. Super. 2013)], Alleyne [v. United States, 133 S.Ct. 2151 (2013)],

and Apprendi [v. New Jersey, 530 US 466 (2000)], constitutes a claim

legitimately sounding in Habeas Corpus?” Hernandez’ Brief at 4. Hernandez

insists that his third PCRA petition should be treated as a petition for a writ

of habeas corpus. Hernandez’ Brief at 10.

      Before reaching the merits of Hernandez’ claims, we must determine

whether the PCRA court correctly construed Hernandez’ filing as a PCRA

petition. The PCRA court found that Hernandez sought relief in the form of a

modified sentence in his petition for writ of habeas corpus. The PCRA is the

exclusive   means     for   obtaining    post-conviction    collateral   relief.

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)

(citing Commonwealth v. Bronshtein, 752 A.2d 868, 869-70 n.3 (Pa.

2000)). This is true regardless of how a filing is titled. Kutnyak, 781 A.2d at

1261 (citing Commonwealth v. Hutchins, 760 A.2d 50, 52 n.1 (Pa. Super.

2000)).

      Our Supreme Court has addressed similar claims from petitioners

seeking relief via habeas corpus when PCRA remedies are available to them.

In Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013), the petitioner

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sought collateral review in the form of a petition for a writ of habeas corpus.

Id. at 345. The Turner Court explained that “the PCRA at Section 9542

subsumes the remedies of habeas corpus and coram nobis.”            Id.   That

section reads, in part:

      The action established in this subchapter shall be the sole means
      of obtaining collateral relief and encompasses all other common
      law and statutory remedies for the same purpose that exist
      when this subchapter takes effect, including habeas corpus and
      coram nobis.

42 Pa.C.S. § 9542. Simply put, the writ of habeas corpus is not available

when there is a remedy under the PCRA.        Commonwealth v. Peterkin,

722 A.2d 638, 640 (Pa. 1998).

      To determine whether Hernandez had a remedy under the PCRA, we

look to the terms of the PCRA. In Commonwealth v. Evans, 866 A.2d 442

(Pa. Super. 2005), the appellant filed a motion for modification of sentence.

The Court found that appellant’s submission, by whatever name, was to be

treated as a petition under the PCRA. Id. at 443. Here, Hernandez claims

he received an unconstitutional sentence. His claim is cognizable under the

PCRA as well. See 42 Pa.C.S § 9543(a)(2)(i)(“A violation of the Constitution

of this Commonwealth or the Constitution or laws of the United States

which, in the circumstances of the particular case, so undermined the truth-

determining process that no reliable adjudication of guilt or innocence could

have taken place”); see also Commonwealth v. Guthrie, 749 A.2d 502,

503 (Pa. Super. 2000)(concluding motion to correct illegal sentence had to



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be treated as petition filed pursuant to PCRA).        Therefore, the PCRA court

did not err in treating the writ as a PCRA petition.

      Before reaching the merits of Hernandez’ claim, we must determine

whether his petition was timely. The PCRA time limits are jurisdictional in

nature and must be strictly construed.       Commonwealth v. Abu-Jamal,

941 A.2d 1263, 1267 (Pa. 2008). A court may not address the merits of an

issue raised in a PCRA petition if it is not timely filed. Id. at 1267-68. All

PCRA petitions “shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the

conclusion of direct review or when the time period to obtain direct review

ends. 42 Pa.C.S.A. §9545(b)(3).

      On December 31, 2003, this Court affirmed Hernandez’ judgment of

sentence.   He did not seek review in the Pennsylvania Supreme Court.

Thus, his judgment became final on January 30, 2004, at the expiration of

the time in which he could have sought further review.           A timely PCRA

petition must have been filed on or before January 30, 2005.               Here,

Hernandez did not file the instant petition until October 3, 2014, nine years

after his judgment of sentence became final.       Therefore, Hernandez’ third

PCRA petition facially is untimely.

      Hernandez can overcome the timeliness requirement if, in his petition,

he alleged and proved one of the following exceptions:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the


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      claim in violation of the Constitution or laws of this
      Commonwealth or the Constitution or laws of the United States;

      (ii) the facts upon which the claim is predicated were unknown
      to the petitioner and could not have been ascertained by the
      exercise of due diligence; or

      (iii) the right asserted is a constitutional right that was
      recognized by the Supreme Court of the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      In his petition, Hernandez pled the third exception to the PCRA’s time

bar. Hernandez’ seeks a new sentence, relying upon Alleyne. In his brief,

he argues that his petition should be considered timely because it was filed

after he learned of Alleyne and Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014). Hernandez’ Brief at 9-11. Hernandez seeks relief on the

claim that portions of his sentence are unconstitutional due to the imposition

of the mandatory sentencing provision of 42 Pa.C.S. § 9712.1, which,

according to Hernandez, violated the ruling set forth in Alleyne.         Id.

Therefore, Hernandez argues his petition should be considered to meet the

third exception to the PCRA’s time bar.

      In Alleyne, the United States Supreme Court held that any fact that

increases the mandatory minimum sentence for crime is an “element” of the

crime, not a “sentencing factor,” that must be submitted to a jury to

determine the validity thereof.     Alleyne, 133 S.Ct. at 2162.    This Court

subsequently held that 42 Pa.C.S. § 9712.1, the same provision under which



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Hernandez was sentenced, was unconstitutional pursuant to Alleyne. See

Newman, 99 A.3d at 98.

      Nevertheless, we previously have rejected the type of claim Hernandez

raises in the context of an untimely PCRA petition:

         Subsection (iii) of Section 9545 [(b)(1)] has two
         requirements. First, it provides that the right asserted is a
         constitutional right that was recognized by the Supreme
         Court of the United States or [the Supreme Court of
         Pennsylvania] after the time provided in this section.
         Second, it provides that the right “has been held” by “that
         court” to apply retroactively. Thus, a petitioner must
         prove that there is a “new” constitutional right and that the
         right “has been held” by that court to apply retroactively.
         The language “has been held” is in the past tense. These
         words mean that the action has already occurred, i.e.,
         “that court” has already held the new constitutional right
         to be retroactive to cases on collateral review.

                                         ***

         Even assuming that Alleyne did announce a new
         constitutional right, neither our Supreme Court, nor the
         United States Supreme Court has held that Alleyne is to
         be applied retroactively to cases in which the judgment of
         sentence had become final. This is fatal to Appellant’s
         argument regarding the PCRA time-bar.

Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa. Super. 2014).

      Since   Miller    was   decided,   neither   the   United   States   nor   the

Pennsylvania Supreme Court has held that Alleyne is to be applied

retroactively. Therefore, Hernandez has not satisfied the requirements for

the exception to the PCRA’s time bar and his PCRA petition is untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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