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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                              :
                                               :
                                               :
    JULIAN FERNANDEZ                           :
                                               :
                      Appellant                :   No. 3212 EDA 2015

                   Appeal from the PCRA Order October 5, 2015
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0006474-2007



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 30, 2016

        Julian Fernandez appeals pro se1 from the order entered October 5,

2015, in the Court of Common Pleas of Montgomery County, that dismissed

as untimely his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.          Fernandez seeks

relief from the judgment of sentence to serve a term of five to 10 years’

imprisonment, followed by five years’ probation. Based upon the following,

we affirm.

        On April 27, 2009, Fernandez was found guilty in a non-jury trial of

two counts of possession with intent to deliver (PWID) a controlled
____________________________________________


1
  As will be more fully discussed below, the PCRA court granted appointed
counsel leave to withdraw from representation.
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substance, two counts of possession of a controlled substance, and one

count of possession of drug paraphernalia.2 On November 9, 2009, the trial

court imposed a mandatory minimum sentence of imprisonment of five to 10

years, followed by five years’ probation.3 On October 12, 2011, this Court

affirmed Fernandez’s judgment of sentence and, on May 24, 2012, the

Pennsylvania      Supreme       Court    denied      allowance    of     appeal.    See

Commonwealth           v.   Fernandez,         37   A.3d   1228   (Pa.    Super.   2011)

(unpublished memorandum), appeal denied, 47 A.3d 844 (Pa. 2012).                     As

more fully discussed below, Fernandez’s judgment of sentence became final

on August 22, 2012, when the 90-day time period expired for filing a writ of

certiorari in the United States Supreme Court.

        On September 24, 2014, Fernandez filed the instant PCRA petition pro

se, asserting that his mandatory minimum sentence was illegal under

Alleyne v. United States, 133 S. Ct. 2151 (2013).4                         Counsel was
____________________________________________


2
    See 35 P.S. §§ 780-113(a)(30), (a)(16), and (32), respectively.
3
 The mandatory minimum sentence was imposed pursuant to 42 Pa.C.S. §
9712.1, with respect to Count 2, PWID (cocaine).
4
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. “The effect of Alleyne's new rule was to invalidate a range of
Pennsylvania sentencing statutes predicating mandatory minimum penalties
upon non-elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing.” Commonwealth v. Wolfe,
140 A.3d 651, 653 (Pa. 2016).




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appointed, and subsequently filed a petition to withdraw, together with 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). The no-merit letter advised, inter alia, that the petition was untimely

because it was filed beyond the PCRA’s one-year time limitation. See No-

Merit Letter, 10/22/2014, at 4.           The no-merit letter further advised that

although Fernandez’s challenge to the legality of his sentence was based on

Alleyne, he could not rely on a PCRA timeliness exception because his

petition had not been filed within 60 days of the date his claim could have

been presented, as required by the PCRA. Id. at 4–5, citing 42 Pa.C.S. §

9545(b)(2).     The no-merit letter further stated Fernandez’s claim did not

satisfy any PCRA timeliness exception. Id. at 5–6.

       By order dated June 11, 2015, the PCRA court issued notice of intent

to dismiss the petition pursuant to Pa.R.Crim.P. 907, granted appointed

counsel’s request to withdraw, and permitted Fernandez 20 days to respond

to the proposed dismissal. Fernandez filed a timely response to the PCRA

court’s Rule 907 notice on June 29, 2015.5 On October 5, 2015, the PCRA

court, upon consideration of the pro se PCRA petition, the no-merit letter,
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5
   Fernandez’s Rule 907 response was mailed from prison in an envelope
post-marked June 29, 2015. According to the “prisoner mailbox rule,” a
document will “be deemed ‘filed’ on the date that the appellant deposits the
appeal with prison authorities and/or places it in the prison mailbox.” See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).




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and Fernandez’s response to the Rule 907 notice, issued a final order that

dismissed Fernandez’s pro se petition without a hearing.            See Order,

10/5/2015. This appeal followed.6

        Although Fernandez identifies six issues in the brief he has submitted

to this Court,7 Fernandez presents one, undivided discussion, in which he

____________________________________________


6
  On October 28, 2015, the PCRA court issued an order for Fernandez to file
a Pa.R.A.P. 1925(b) statement within 21 days of the court’s order.
Fernandez complied by filing a Rule 1925(b) statement, which was entered
on the docket on November 19, 2015. There is no post-marked envelope
included in the certified record to indicate the date of mailing pursuant to the
“prisoner mailbox rule,” supra. However, we can infer that Fernandez must
have mailed the concise statement at the latest by November 18, 2015, i.e.,
within 21 days of the PCRA court’s order.
7
    Fernandez lists the following issues in his brief:

        A. The PCRA court erred by failing to provide a legally robust
           discussion with clear findings of fact thus denying proper
           appellate review.

        B. The PCRA court erred in dismissing appellant’s PCRA petition
           for untimely filing.

        C. The PCRA court erred in dismissing appellant’s PCRA petition
           due to delay in filing without holding a hearing.

        D. The PCRA court erred in failing to find appellant’s appellate
           counsel ineffective for failing to ask the appellate court for a
           stay and abeyance to await the decision made in Alleyne v.
           United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

        E. [Fernandez’s] PCRA counsel was ineffective for failing to
           contact him about his case as required by Commonwealth
           v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).

(Footnote Continued Next Page)


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contends that “the PCRA court erred in failing to find that counsel was

ineffective as it pertains to his inability to argue that the mandatory

minimum sentence imposed in the instant case constituted an illegal

sentence under Alleyene,” and that he “is serving an illegal sentence …

based on an unconstitutional statute.”            Fernandez’s Brief, “Summary of

Argument,” Section VI (p. 4, unpaginated).

      Our standard of review is well established:

      “In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination ‘is supported by the record and free
      of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
      A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
      Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283-84 (Pa. 2016).

      “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

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

sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “a

judgment becomes 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
                       _______________________
(Footnote Continued)

      F. [Fernandez’s] PCRA counsel was ineffective for filing a “no-
         merit” letter and withdrawing from his case.

Fernandez’s Brief, “Statement of Questions Involved,” Section IV (p. 2,
unpaginated).



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review.” 42 Pa.C.S. § 9545(b)(3). There are three statutory exceptions to

the PCRA’s timeliness provisions that allow for limited circumstances under

which an otherwise untimely PCRA petition may be reviewed. To invoke an

exception, a petition must allege and the petitioner must prove:

      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

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

      As stated above, Fernandez’s judgment of sentence became final on

August 22, 2012, following this Court’s May 24, 2012, affirmance of the

judgment of sentence and the expiration of the 90-day period for him to file

a petition for certiorari in the United States Supreme Court. See 42 Pa.C.S.

§ 9545(b)(3); U.S.Sup.Ct. Rule 13.     Therefore, applying the PCRA’s one-

year time limitation, Fernandez had until August 22, 2013, to file a timely

PCRA petition. See 42 Pa.C.S. § 9545(b)(1). However, because Fernandez




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filed his first PCRA petition on September 24, 2014, it is patently untimely.

See 42 Pa.C.S. § 9545(b)(1).

         At the outset, it is important to note that “although illegal sentencing

issues cannot be waived, they still must be presented in a timely PCRA

petition.” Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013).

Accordingly, in this case, there is no jurisdiction to review the present

petition unless a timeliness exception applies. See 42 Pa.C.S. 9545(b)(1)(i)-

(iii).   The PCRA court determined no timeliness exception applied, and we

agree.

         Fernandez’s assertion that his mandatory minimum sentence is illegal

in light of Alleyne implicates the PCRA’s timeliness exception for a newly

recognized and retroactively applied constitutional right, 42 Pa.C.S. §

9545(b)(1)(iii).     However, in order to invoke this statutory exception,

Fernandez was required to file his petition within 60 days of Alleyne, which

was decided on June 17, 2013. See 42 Pa.C.S. § 9545(b)(2).            As already

stated, Fernandez did not file the instant petition until September 24, 2014.

Therefore, as Fernandez failed to comply with the prerequisite set forth in

Section 9545(b)(2), Fernandez cannot overcome the PCRA time-bar.

         Even if Fernandez had filed his petition within 60 days of the Alleyne

decision, no relief would be due. Fernandez’s reliance on Commonwealth

v. Wolfe, 140 A.3d 651 (Pa. 2016), and Montgomery v. Louisiana, 136 S.

Ct. 718 (2016), to argue Alleyne applies to his case is misplaced.           The


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Pennsylvania Supreme Court, in Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), definitively held that Alleyne does not apply retroactively to

cases on collateral review where the petitioner’s judgment of sentence had

already become final. As this Court recently explained:

      Finally, assuming that Alleyne announced 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, and
      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 the Pennsylvania Supreme
      Court specifically holds it to be retroactively applicable to those
      cases. Commonwealth v. Phillips, 2011 PA Super 231, 31
      A.3d 317, 320 (Pa. Super. 2011), appeal denied, 615 Pa. 784,
      42 A.3d 1059 (2012). To the contrary, our Supreme Court
      recently filed an opinion in Commonwealth v. Washington,
      142 A.3d 810, 2016 Pa. LEXIS 1536, 2016 WL 3909088 (Pa. July
      19, 2016) wherein it addressed the retroactive effect of Alleyne
      and held “that Alleyne [v. United States,        U.S. , 133 S.Ct.
      2151, 186 L. Ed. 2d 314 (2013),] does not apply retroactively to
      cases pending on collateral review. . . .” [142 A.3d at 820].

Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa. Super. 2016).

Therefore, Section 9545(b)(1)(iii) would be not afford Fernandez PCRA relief.

      Additionally, Fernandez asserts in his brief that his Alleyne claim is

predicated on the exception for governmental interference, 42 Pa.C.S. §

9545(b)(1)(ii).   Specifically, he claims that the Pennsylvania Supreme

Court’s decision to deny his petition for allowance of appeal constituted

governmental interference.     This claim, however, has been waived, since

“exceptions to the time bar must be pled in the PCRA petition, and may not




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be raised for the first time on appeal.”    Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007).

          Even if this claim had been preserved, as already noted, Fernandez

failed to file his petition within 60 days of Alleyne, and therefore, on this

basis, he cannot satisfy the governmental interference exception.     In any

event, there is no automatic right to appeal to the Pennsylvania Supreme

Court. See 42 Pa.C.S. § 724. Therefore, it was within the Court’s discretion

to deny the petition for allowance of appeal.   Furthermore, the Pennsylvania

Supreme Court’s denial of allowance for appeal did not prevent Fernandez

from filing a writ of certiorari in the United States Supreme Court.

Consequently, Section 9545(b)(1)(i) would be not afford Fernandez PCRA

relief.

          In sum, we conclude the PCRA court correctly determined it lacked

jurisdiction to consider the merits of Fernandez’s PCRA petition and properly

dismissed it as untimely filed. Accordingly, we affirm the PCRA court’s

October 5, 2015, Order.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2016

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