J-A14026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE A. GONZALEZ

                            Appellant                No. 1362 MDA 2014


                    Appeal from the PCRA Order July 8, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0002205-2001
                                          CP-36-CR-0002213-2001
                                          CP-36-CR-0002257-2001
                                          CP-36-CR-0002258-2001

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 04, 2015

        Jose Gonzalez appeals from an order denying his petition for relief

under the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.      The lone

issue in this appeal is whether Gonzalez’s sentence is unconstitutional under

Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). Alleyne does

not apply to cases on collateral review such as the case at bar. Therefore,

we affirm.

        On January 8, 2002, Gonzalez was convicted of four counts of delivery

of cocaine1 and one count of criminal conspiracy.2 On March 4, 2002, the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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trial court invoked the mandatory minimum provisions of 18 Pa.C.S. § 7508

and sentenced Gonzalez to an aggregate sentence of 18-36 years’

imprisonment. On December 19, 2002, the Superior Court affirmed his

judgment of sentence, and on May 28, 2003, the Supreme Court denied his

petition for allowance of appeal.

        In 2004, Gonzalez filed a PCRA petition which the PCRA court

dismissed without a hearing.           This Court subsequently affirmed.   In 2006

and 2007, Gonzalez filed two more PCRA petitions, both of which the PCRA

Court dismissed without a hearing. In both instances, this Court affirmed on

the ground that the PCRA petition was untimely. Finally, on May 30, 2014,

Gonzalez filed his fourth pro se PCRA petition, the petition presently on

appeal, alleging that the trial court’s use of the mandatory minimum

provisions in section 7508 rendered his sentence unconstitutional under

Alleyne. On June 6, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice

of intent to dismiss the PCRA petition without a hearing.          On August 14,

2014, the court issued an order dismissing the fourth PCRA petition without

a hearing. This timely appeal followed. Both Gonzalez and the PCRA court

complied with Pa.R.A.P. 1925.

        The single issue in this appeal is as follows:

                       _______________________
(Footnote Continued)
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903.



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              Whether the PCRA court erred as a matter of law and
              Constitution in dismissing appellant’s pro se PCRA
              Petition, where appellant was sentenced to a
              mandatory minimum sentence under statute 18
              Pa.C.S.A. §7508 which was and is deemed
              unconstitutional in light of [Alleyne]?

Brief   For   Appellant,    p.   4.   Gonzalez     argues     that    his   sentence   is

unconstitutional under Alleyne, which held that, other than the fact of a

prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory minimum must be submitted to a jury and proved

beyond a reasonable doubt. Id., 131 S.Ct. at 2160-61.

        This issue is not waived, because challenges to the legality of a

sentence cannot be waived. Commonwealth v. Miller, 102 A.3d 988, 996

(Pa.Super.2014)     (Alleyne      challenge   to   legality   of     sentence   is   “not

technically waivable”). On the other hand, this issue is untimely, because

Gonzalez raised it for the first time more than one year after his judgment of

sentence became final and has not pleaded or proved one of the PCRA’s

enumerated exceptions. As a result, we lack jurisdiction to review it under

the PCRA’s statute of limitations, 42 Pa.C.S. § 9545(b).

        Section 9545       provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.        Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

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A.2d 1157, 1161 (Pa.2003)). A judgment is final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

            (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)(i)-(iii).    A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

      With these principles in mind, we observe that Gonzalez’s judgment of

sentence became final on August 26, 2003, the final day for filing a petition

for writ of certiorari in the United States Supreme Court.       Thus, Gonzalez



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had until August 26, 2004 to timely file a PCRA petition. Gonzalez did not

file his petition until May 30, 2014. Thus, it is untimely on its face.

      Nor do any of the exceptions in section 9545(b)(i-iii) apply to this

case. Gonzalez suggests in his brief that Alleyne applies retroactively under

section 9545(b)(iii), because challenges to the illegality of his sentence are

never waived.    We disagree, based on our analysis of the same issue in

Miller.   Miller held that the PCRA court lacked jurisdiction to consider an

Alleyne argument presented in a second PCRA petition filed five years after

the petitioner’s judgment of sentence became final, reasoning:

            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. By employing the past tense in
            writing this provision, the legislature clearly intended
            that the right was already recognized at the time the
            petition was filed.

                                     …

            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.

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          This is fatal to Appellant’s argument regarding the
          PCRA time-bar. This Court has recognized that a new
          rule of constitutional law is applied retroactively to
          cases on collateral review only if the United States
          Supreme Court or our Supreme Court specifically
          holds it to be retroactively applicable to those cases.
          Commonwealth v. Phillips, 31 A.3d 317, 320
          (Pa.Super.2011), appeal denied, 615 Pa. 784, 42
          A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
          656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
          see also, e.g., Commonwealth v. Taylor, 933
          A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
          purposes of subsection (iii), the language ‘has been
          held by that court to apply retroactively’ means the
          court announcing the rule must have also ruled on
          the retroactivity of the new constitutional right,
          before the petitioner can assert retroactive
          application of the right in a PCRA petition[ ]’), appeal
          denied, 597 Pa. 715, 951 A.2d 1163 (2008).
          Therefore, Appellant has failed to satisfy the new
          constitutional right exception to the time-bar.

                                  …

          We are aware that an issue pertaining to Alleyne
          goes to the legality of the sentence. See
          Commonwealth v. Newman, 99 A.3d 86, 90
          (Pa.Super.2014) (en banc) (stating, ‘a challenge to a
          sentence premised upon Alleyne likewise implicates
          the legality of the sentence and cannot be waived on
          appeal[ ]’). It is generally true that ‘this Court is
          endowed with the ability to consider an issue of
          illegality of sentence sua sponte.’ Commonwealth
          v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
          (citation omitted). However, in order for this Court to
          review a legality of sentence claim, there must be a
          basis for our jurisdiction to engage in such review.
          See Commonwealth v. Borovichka, 18 A.3d 1242,
          1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
          legality of a sentence ... may be entertained as long
          as the reviewing court has jurisdiction[ ]’) (citation
          omitted). As this Court recently noted, ‘[t]hough not
          technically waivable, a legality [of sentence] claim
          may nevertheless be lost should it be raised ... in an

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           untimely PCRA petition for which no time-bar
           exception applies, thus depriving the court of
           jurisdiction over the claim.’ [Commonwealth v.]
           Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
           result, the PCRA court lacked jurisdiction to consider
           the merits of Appellant’s second PCRA petition, as it
           was untimely filed and no exception was proven…

Miller, 102 A.3d at 994, 995, 996 (emphasis added; certain citations

omitted). Miller squarely applies to this case. Like the petitioner in Miller,

Gonzalez raised Alleyne more than one year after his judgment of sentence

became final.   Moreover, even if Alleyne announced a new constitutional

right, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that this right applies retroactively. Thus, although

Alleyne implicates the legality of Gonzalez’s sentence, we lack jurisdiction

to address this issue. Miller, 102 A.3d at 995, 996.

     Gonzalez’s Alleyne argument suffers from an additional jurisdictional

defect not present in Miller.     Whereas the petitioner in Miller raised

Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,

Gonzalez did not raise Alleyne until over one year after its issuance.

Consequently, his Alleyne claim is untimely under the sixty-day deadline in

section 9545(b)(2) for filing exceptions to the PCRA’s one-year time bar.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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