J-S07013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

ERIC CARLO MARTORELL

                        Appellant                   No. 1453 MDA 2016


               Appeal from the PCRA Order August 24, 2016
             In the Court of Common Pleas of Lebanon County
            Criminal Division at No(s): CP-38-CR-0000835-2009


BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED MARCH 01, 2017

      Eric Carlo Martorell appeals from the August 24, 2016 order dismissing

his PCRA petition as untimely. We affirm.

      On March 30, 2009, Appellant was charged with three counts each of

possession of a controlled substance with intent to deliver, criminal use of a

communication facility, and possession of a controlled substance.          On

September 9, 2008, while operating undercover, Pennsylvania State Trooper

Michael Lane purchased cocaine from Appellant.          Trooper Lane called

Appellant’s cell phone and asked to buy one ounce of cocaine.       Appellant

agreed to the sale, and they arranged to meet at the Porch Restaurant,

which was located at the intersection of Millardsville and Tulpenhocken

Roads, Jackson Township.      Trooper Lane and Appellant sat at a table,
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Appellant handed the Trooper a cigarette box containing a baggie with

cocaine in it, and Trooper Lane gave Appellant $900.

        On October 8, 2008, Trooper Lane made another purchase of cocaine

from Appellant.     The Trooper called Appellant at the same cell phone

number, but Appellant did not answer.             About fifteen minutes thereafter,

Appellant called Trooper Lane’s phone and asked who he was. Trooper Lane

responded, “Mike, with the Harley,” and Appellant recalled meeting him.

Affidavit of Probable Cause, 3/30/09, at 1. Trooper Lane asked to purchase

another ounce of cocaine, and the two men arranged to meet at Gionotti’s

Restaurant in Robesonia, Heidelberg Township.              After sitting at the bar

together, the two men consummated the sale in the back of the restaurant.

Appellant handed Trooper Lane a cigarette box containing a baggie with

cocaine, and received $900 in return.

        On October 23, 2008, Trooper Lane again arranged to buy one ounce

of cocaine from Appellant, who indicated that the price had increased by

$100.    The sale was completed at Gionatti’s Restaurant.          Appellant again

placed the cocaine in a baggie in a cigarette box and handed it to Trooper

Lane, who gave Appellant $1,000.

        On August 27, 2009, Appellant tendered a guilty plea to the charges,

and on September 30, 2009, he was sentenced to ten to twenty years

imprisonment.       Appellant   filed   a   pro    se   post-sentence   motion   for

modification of his sentence.     That motion was denied because Appellant

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“agreed in his guilty plea to a minimum of ten years with the court to set the

maximum.” Order, 10/16/09, at 1 (unnecessary capitalization omitted).

      On January 22, 2016, Appellant filed the PCRA petition at issue in this

appeal, and counsel was appointed. PCRA relief was denied on August 24,

2016, and this appeal followed.        Appellant presents one contention,

“Whether the Trial Court erred in denying Appellant’s PCRA Petition as

untimely?” Appellant’s brief at 4. We first observe that this Court reviews

the “denial of PCRA relief to determine whether the findings of the PCRA

court are supported by the record and free of legal error.” Commonwealth

v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016) (quoting Commonwealth v.

Treiber, 121 A.3d 435, 444 (Pa. 2015)).

      Next, it is axiomatic that all PCRA petitions must be filed within one

year of the date a defendant’s judgment becomes final unless an exception

to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.”     Commonwealth v. Miller, 102 A.3d 988, 992

(Pa.Super. 2014) (citation omitted); see also Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006). “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 review.” 42 Pa.C.S. § 9545(b)(3).




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       In this case, Appellant did not file a direct appeal so that his

September 30, 2009 judgment of sentence became final on October 30,

2009,1 and he had until October 30, 2010 to file a timely petition.        The

January 22, 2016 petition was patently untimely.            There are three

exceptions to the one-year time bar of § 9545:

       (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).



____________________________________________


1
  We note that, since Appellant was represented when he filed his pro se
post-sentence motion, it was of no legal effect.        Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (when defendant was
represented by counsel, “his pro se post-sentence motion was a nullity,
having no legal effect”); accord Commonwealth v. Reid, 117 A.3d 777,
781 n.8 (Pa.Super. 2015) (where defendant was “represented by counsel at
the time he filed his pro se motion for reconsideration,” that motion was a
nullity); see also Commonwealth v. Ali, 10 A.3d 282 (2010) (pro se
1925(b) statement filed by a represented defendant was a nullity). Hence,
we conclude that the motion did not serve to extend the date that
Appellant’s judgment of sentence became final.



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      Appellant invokes the newly-recognized constitutional right exception.

He avers that his sentence, which included a term of imprisonment involving

a mandatory minimum sentence applicable due to the weight of the cocaine

involved, was illegal under the United States Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the Court

held that, under the Sixth Amendment’s right to a jury trial, facts that

invoke the application of a mandatory minimum sentence must be submitted

to a jury and found beyond a reasonable doubt.           Appellant argues that

Alleyne “established a new constitutional right” and his petition was timely

under § 9545(b)(1)(iii). Appellant’s brief at 11.

      The first flaw in this position is that Appellant did not timely invoke the

newly-created constitutional right exception in the first instance.      Section

9545(b)(2) of the PCRA expressly states, “Any petition invoking an exception

provided in paragraph (1) shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2). Alleyne was filed on

June 17, 2013, and Appellant had until August 16, 2013, to fall within the

after-recognized   constitutional   right   exception   based   upon   Alleyne.

Appellant counters that “he filed his PCRA Petition as diligently as he could

after becoming privy to the Alleyne v. United States decision.” Appellant’s

brief at 11. However, when Appellant actually found out about the Alleyne

decision is not the pertinent inquiry herein; the date of the filing of the case

in question is the triggering date for application of § 9545(b)(1)(iii).

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Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (sixty-

day time period for filing a timely PCRA petition invoking new decisional law

begins to run when that case was filed and not when defendant became

aware of it); see also Commonwealth v. Whitehawk, 146 A.3d 266, 271

(Pa.Super. 2016).         Since Appellant’s petition was not filed by August 16,

2013, he did not timely assert the newly recognized constitutional right

exception as to the Alleyne decision.

        Additionally,      Alleyne     is   not    retroactive.    Commonwealth        v.

Washington, 142 A.3d 810, 811 (Pa. 2016) (holding that Alleyne does not

apply    retroactively      “to   attacks   upon     mandatory      minimum     sentences

advanced on collateral review”).            Appellant also does not fall within the

parameters of the newly-recognized constitutional right exception because §

9545(b)(1)(iii) mandates that the right be held by the United States

Supreme Court or the Pennsylvania Supreme Court to apply retroactively.

Miller, supra (Alleyne does not fall within newly-created constitutional

right exception to one-year time bar of PCRA as it has not made

retroactively applicable).

        Appellant also observes that his sentence is illegal. Appellant’s brief at

11.     A legality of sentence issue is not subject to waiver principles, and

Alleyne does pertain to the legality of a sentence.                  Commonwealth v.

Barnes, 2016 WL 7449232 (Pa. Dec. 28, 2016).                      However, a legality-of-

sentence     issue      still   must   be   raised    in   a   timely    PCRA    petition.

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Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although a

legality of sentence is always subject to review within the PCRA, claims must

still first satisfy the PCRA's time limits or one of the exceptions thereto”).

Thus, Appellant cannot overcome the one-year filing deadline for this PCRA

petition based upon the position that his sentence was illegal.

      The PCRA court did not abuse its discretion or commit an error of law

in dismissing the present PCRA petition as untimely, and we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2017




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