J-S05004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LAZARO LUIS ABREU-SUSET,

                            Appellant                  No. 996 MDA 2015


                  Appeal from the Order Entered May 11, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000903-2008


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED JANUARY 05, 2016

        Appellant, Lazaro Luis Abreu-Suset,1 appeals pro se from the May 11,

2015 order dismissing, as untimely, his second petition for relief filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

After careful review, we affirm.

        The PCRA court set forth the history of Appellant’s case, as follows:

             On November 4, 2009, a jury found [Appellant] guilty of
        two counts of Rape of a Child,2 two counts of Involuntary
        Deviate Sexual Intercourse with a Child,3 two counts of
        Aggravated Indecent Assault of a Child,4 two counts of Indecent
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that in Appellant’s pro se brief to this Court, he spells his
surname, “Abreau-Suset.”     However, in the certified record, and prior
decisions by this Court in Appellant’s case, his surname is spelled, “Abreu-
Suset.” To maintain consistency, we will use the latter spelling.
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       Assault of a Person Less than 13 Years of Age,5 one count of
       Indecent Exposure,6 and one count of Corruption of Minors.7 On
       March 31, 2010, [Appellant] received … an aggregate sentence
       of not less than 16 nor more than 35 years.2
          2
              18   Pa.C.S.A.   §3121(c).
          3
              18   Pa.C.S.A.   §3123(b).
          4
              18   Pa.C.S.A.   §3125(b).
          5
              18   Pa.C.S.A.   §3126(a)(7).
          6
              18   Pa.C.S.A.   [§]3127.
          7
              18   Pa.C.S.A.   §6301(a)(1).

              [Appellant] filed a timely Notice of Appeal to the Superior
       Court of Pennsylvania. After the Superior Court affirmed his
       sentence, [Appellant] filed a Petition for Allowance of Appeal in
       the Supreme Court of Pennsylvania, which was denied on August
       30, 2011.[3]     [Appellant] timely filed [a] PCRA petition on
       November 18, 2011 and counsel was appointed. An evidentiary
       hearing was held on August 20, 2013; ultimately, [Appellant’s]
       petition [w]as dismissed by Order and Opinion of November 21,
       2013. [Appellant] filed a timely appeal to the Superior Court;
       the Superior Court affirmed the order of the PCRA court on June
       24, 2014.[4] [Appellant] filed the instant petition on March 2,
       2015, alleging that, based on Alleyne v. United States,8 his
       sentence was illegal because he had received a mandatory
       sentence, which, under Pennsylvania law at the time, required
       only that the facts to determine the [applicability of the]
       mandatory minimum sentence be submitted to the judge and
       proved by a preponderance of the evidence.
          8
              Alleyne v. United States, 133 S.Ct. 2151 (2013).

____________________________________________


2
  The record indicates that Appellant received two mandatory minimum
terms of 10 years’ imprisonment, pursuant to 42 Pa.C.S. § 9718(3), for one
count of rape of a child and one count of aggravated indecent assault of a
child.
3
  Commonwealth v. Abreu-Suset, 23 A.3d 1074 (Pa. Super. 2011)
(unpublished memorandum), appeal denied, 27 A.3d 1014 (Pa. 2011).
4
  Commonwealth v. Abreu-Suset, 105 A.3d 44 (Pa. Super. 2014)
(unpublished memorandum).



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PCRA Court’s Pa.R.Crim.P. 907 Notice, 4/21/15, at 1-2.

      The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition as untimely on April 21, 2015. Appellant filed a

pro se response, but the court issued an order dismissing his petition on May

11, 2015.      Appellant filed a timely pro se notice of appeal, as well as a

timely Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.   Herein, he presents six issues in his Statement of the Questions

Involved, but in his argument, he abandons all but the following claim:

“Whether [Appellant’s] mandatory minimum sentence of 16 years imposed

under the unconstitutional statute 42 Pa.C.S.A. [§] 9718 is illegal under the

recent decision rendered by our Pennsylvania [Supreme] Court … in

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

Brief at 15.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.    Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of his claims.     See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

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PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition).     Under the PCRA, any

petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date on which the judgment of sentence

becomes final, unless one of the following exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

      Here, after this Court affirmed Appellant’s judgment of sentence, the

Pennsylvania Supreme Court denied his petition for allowance of appeal on



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August 30, 2011. Thus, Appellant’s judgment of sentence became final on

November 28, 2011, at the expiration of the 90 day time-period for seeking

review with the Supreme Court of the United States.         See 42 Pa.C.S. §

9545(b)(3) (stating that a judgment of sentence becomes final at the

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

review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998)

(directing that under the PCRA, petitioner’s judgment of sentence becomes

final ninety days after our Supreme Court rejects his or her petition for

allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court). Consequently, Appellant had

until November 28, 2012, to file a timely PCRA petition, making his instant

petition patently untimely.

      For this Court to have jurisdiction to review the merits of Appellant’s

claims, he must prove the applicability of one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b)(1).         Appellant

argues that he has satisfied the ‘new constitutional right’ exception of

section 9545(b)(1)(iii). This Court has explained the requirements for

satisfying this exception, as follows:

      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

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       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.

Com.     v.   Miller,   102   A.3d    988,    994   (Pa.   Super.   2014)   (quoting

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)).

       Specifically,    Appellant    maintains   that   his    mandatory    minimum

sentences, imposed under 42 Pa.C.S. § 9718 (“Sentences for offenses

against infant persons”), are illegal under the new constitutional rule

announced in Alleyne, and this Court’s holding in Commonwealth v.

Wolfe, 106 A.3d 800 (Pa. Super. 2014).              In Alleyne, the United States

Supreme Court held that “facts that increase mandatory minimum sentences

must be submitted to the jury” and found beyond a reasonable doubt.

Alleyne, 133 S.Ct. at 2163.           Thereafter, this Court held in Wolfe that

section 9718 is unconstitutional, in its entirety, in light of Alleyne and

subsequent decisions by this Court.          See Wolfe, 106 A.3d at 806 (citing,

inter alia, Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014 (en

banc),   as   “stand[ing]     for   the   proposition   that   mandatory    minimum

sentencing statutes in Pennsylvania of this format are void in their

entirety”).    Appellant claims that Alleyne and Wolfe announced ‘new

constitutional rules’ triggering applicability of section 9545(b)(1)(iii), thus

requiring this Court to vacate his illegal, mandatory minimum sentences.

       We disagree.       “Even assuming that Alleyne did announce a new

constitutional right, neither our Supreme Court, nor the United States

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Supreme Court has held that Alleyne is to be applied retroactively to cases

in which the judgment of sentence had become final.” Miller, 102 A.3d at

995. Furthermore, Wolfe did not announce a ‘new rule’; rather, in that case

we simply assessed the validity of 42 Pa.C.S. § 9718 under Alleyne and

subsequent decisions by this Court, and concluded that that mandatory

minimum sentencing statute is unconstitutional.       Moreover, even if Wolfe

did announce a new rule, no decision by our Supreme Court or the United

States Supreme Court has held that Wolfe applies retroactively to post-

conviction petitioners such as Appellant. Accordingly, Appellant cannot rely

on either Alleyne or Wolfe to satisfy section 9545(b)(1)(iii).

       We also reject Appellant’s argument that our Supreme Court’s recent

decision in Hopkins satisfies this exception to the PCRA time-bar.        In that

case, the Court held that under Alleyne, the mandatory minimum

sentencing scheme set forth in 18 Pa.C.S. § 6317 (“Drug-free school zones”)

is unconstitutional in its entirety, as certain provisions of that statute do not

adhere to Alleyne’s rule and are not severable from the remaining portions

of the statute.     See Hopkins, 117 A.3d at 262.          For the same reasons

discussed supra regarding Wolfe, the Hopkins decision did not create a

new constitutional rule. Moreover, even if it did, our Supreme Court has not

held   that   any   allegedly   ‘new   rule’   announced   in   Hopkins   applies

retroactively to post-conviction petitioners.        Consequently, Appellant’s

reliance on Hopkins also does not satisfy the timeliness exception of section

9545(b)(1)(iii).

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     Finally, we are unable to afford Appellant relief based on his assertion

that we must review (and vacate) his sentence because challenges to the

legality of a sentence can never be waived.    Our Court has clarified that,

“[t]hough not technically waivable, a legality [of sentence] claim may

nevertheless be lost should it be raised … in an untimely PCRA petition for

which no time-bar exception applies, thus depriving the court of jurisdiction

over the claim.” Miller, 102 A.3d at 995 (citation omitted). Because here,

Appellant has not demonstrated the applicability of any timeliness exception,

this Court does not have jurisdiction to consider the merits of his petition

and vacate his mandatory minimum sentences.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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