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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
LUIS ENRIQUE PEREZ,                        :
                         Appellant         :
                                           :
                                           :     No. 596 MDA 2016

                  Appeal from the PCRA Order March 21, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003523-2008
                                          CP-06-CR-0003528-2008
                                          CP-06-CR-0005078-2008

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 28, 2016

        Appellant, Luis Enrique Perez, appeals pro se from the March 21, 2016

Order entered in the Berks County Court of Common Pleas, dismissing his

Writ of Habeas Corpus. Since Appellant’s Petition was untimely and he failed

to plead and prove an exception to the PCRA’s one-year time-bar, the PCRA

court lacked jurisdiction to entertain his claims. Accordingly, we affirm.

        On September 21, 2009, Appellant pled guilty to one count each of the

following five crimes that were charged under three different docket

numbers: Possession with Intent to Deliver a Controlled Substance—

Cocaine, Driving While Operating Privilege is Suspended or Revoked,

*
    Retired Senior Judge assigned to the Superior Court.
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Possession with Intent to Deliver a Controlled Substance—Cocaine, School

Zone Mandatory, Firearms Not to be Carried without a License, and

Recklessly Endangering Another Person.1 Pursuant to a plea agreement, on

the same day, the court sentenced Appellant to an aggregate term of three

to seven years’ incarceration.      Appellant did not file any Post-Sentence

Motions or a direct appeal from his Judgment of Sentence. His Judgment of

Sentence thus became final on October 21, 2009.

      On September 15, 2015, Appellant filed pro se the instant Petition,

titled Writ of Habeas Corpus ad Subjiciendum, challenging ”the illegal

mandatory    minimum      imposed    under    [18   Pa.C.S.    §]   6317   (See

Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).” Appellant’s Brief

at 6. The trial court considered the filing a Petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

      On September 28, 2015, the PCRA court appointed counsel to

represent Appellant and granted counsel 30 days to file either an amended

Petition under the PCRA, or a “no merit” letter pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).

      On December 23, 2015, counsel filed a “no merit” letter and a Petition

to Withdraw as Counsel. Appellant did not respond to counsel’s Petition.

1
  35 P.S. § 780-113(a)(30), 75 Pa.C.S. § 1543(a), 35 P.S. § 780-
113(a)(30), 18 Pa.C.S. § 6106(a)(1), and 18 Pa.C.S. § 2705, respectively.




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     On January 26, 2016, the PCRA court issued an Order and Notice of

Intent to dismiss Appellant’s PCRA Petition without a hearing pursuant to

Pa.R.Crim.P. 907, concluding that Appellant’s Petition was untimely filed and

Appellant had failed to plead and prove one of the statutory exceptions to

the PCRA’s time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). The PCRA court

also granted counsel’s Petition to Withdraw as Counsel.

     On March 21, 2016, the PCRA court dismissed Appellant’s Petition.

Appellant timely appealed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

     Appellant raises one issue on appeal: “This Court should resolve the

issue as to whether the ruling by the Pennsylvania Appellate Courts, in

finding mandatory sentencing statutes void ab initio pursuant to Alleyne v.

United States[, 133 S.Ct. 2151 (2013)], have created a position where

retroactive application of Alleyne should apply to defendant’s [sic] in

Pennsylvania based on the decision of the United States Supreme Court in

Welch v. United States, [136 S.Ct. 1257 (2016)].” Appellant’s Brief at 5.

     Appellant has challenged the legality of his sentence; a challenge to

the legality of a sentence is cognizable under the PCRA. 42 Pa.C.S. § 9542;

Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004).             When

raising a challenge to the legality of his sentence, “a defendant cannot

escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.



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2013).     Accordingly, the trial court properly treated the instant Writ of

Habeas Corpus as a PCRA Petition.

        We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether the Order is

otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803

(Pa. 2014). Before addressing the merits of Appellant’s claims, however, we

must first determine whether we have jurisdiction to entertain the

underlying PCRA Petition.

        A PCRA petition must be filed within one year of the date the

underlying judgment becomes final; a judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review.

42 Pa.C.S. §§ 9545(b)(1), (3).      Since the time-bar implicates the subject

matter jurisdiction of our courts, “courts are without jurisdiction to offer any

form of relief” beyond the jurisdictional time-period.    Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).         This proscription extends

even to claims challenging the legality of a sentence. Id.     Accordingly, no

court    has   jurisdiction   to   consider   an   untimely    PCRA    Petition.

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

        Here, Appellant’s sentence became final on October 21, 2009, as he

did not file a direct appeal from his September 21, 2009 Judgment of

Sentence. Appellant, thus, had until October 21, 2010, to file a timely PCRA




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Petition. He filed the instant Petition almost five years later, on September

15, 2015. It is, therefore, patently untimely.

        When a PCRA petition is patently untimely, a petitioner is required to

plead and prove one of the following statutory exceptions to the one-year

time-bar provided in 42 Pa.C.S. § 9545(b):

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

        In addition, the PCRA requires that a petition invoking one of the

timeliness exceptions must be filed within 60 days of the date the claim

could    have   been    presented.     42   Pa.C.S.   §   9545(b)(2).     See

Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (“the 60-day

rule requires a petitioner to plead and prove that the information on

which he relies could not have been obtained earlier, despite the exercise of

due diligence.”) (emphasis added).




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      Our review of the record in the instant case supports the PCRA court’s

conclusion that Appellant’s Petition was untimely filed. Appellant appears to

attempt to invoke our jurisdiction through the timeliness exception found in

Section 9545(b)(1)(iii).

      Appellant argues that the PCRA court erred in relying on the PCRA to

find his petition untimely because “any timeliness provision that prevents a

challenge to a statute that is void ab initio is also unconstitutional on its

face.” Appellant’s Brief at 8-9. Appellant argues strenuously that Alleyne

announced a substantive rule that has retroactive effect in cases on

collateral review, and relies on Welch, supra. See Appellant’s Brief at 9-

12.

      In Welch, the United States Supreme Court, considering its prior

holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the

imposition of an increased sentence under the federal Armed Career Criminal

Act’s residual clause violated the defendant’s due process rights, concluded

that Johnson announced a new substantive rule that has retroactive effect

on cases under collateral review.

      Appellant is essentially arguing that this Court should interpret

Alleyne as announcing a substantive rule. However, our Supreme Court in

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), recently held

that Alleyne did not announce a substantive rule or a watershed procedural

rule, and does not apply retroactively on collateral review. Id. at 819-20.



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      Moreover, Welch did not address Alleyne and its retroactivity.

Rather, it concluded that, “Johnson changed the substantive reach of the

Armed Career Criminal Act, altering the range of conduct or the class of

persons that the Act punishes.”    Welch, 136 S.Ct. at 1265 (citation and

quotation marks omitted). In contrast, our Supreme Court in Washington

noted that the rule set forth in Alleyne is procedural because it, “allocates

the relevant decision-making authority to a jury rather than a judge[,] as

opposed to “alter[ing] the range of conduct or the class of persons punished

by the law[.]” Washington, 143 A.3d at 818 (citation omitted).

      Because Appellant failed to plead and prove that one of the

enumerated exceptions to the time-bar applied to his case, the PCRA court

did not have subject matter jurisdiction over the instant PCRA petition.

Hence, the court’s March 21, 2016 Order dismissing Appellant’s petition for

collateral relief was legally sound and supported by the record.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/28/2016




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