J-S07013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

PEDRO DEJESUS,

                          Appellant                  No. 1051 MDA 2015


                  Appeal from the PCRA Order May 18, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002754-2010


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 16, 2016

       Pedro DeJesus appeals from the May 18, 2015 order dismissing his

second PCRA petition as untimely. We affirm.

       We refer to the trial court’s opinion on direct appeal for the factual

background of this case:

       [Dejesus] was convicted of a sex offense in February 2005.
       Pursuant to Megan's Law, [Dejesus] was subject to lifetime
       registration as a sex offender. Prior to being released from
       prison, [Dejesus] provided the Pennsylvania State Police the
       address of 303 West King Street, Lancaster, Pennsylvania. Upon
       [Dejesus's] release from prison on March 19, 2010, Agent
       Mscisz, of the Pennsylvania Board of Probation and Parole
       (PBPP), learned that [Dejesus] was not residing at 303 West
       King Street. [Dejesus's] mother confirmed that [Dejesus] did not
       live at her address. She further informed the agent that
       [Dejesus] was living with his sister at 222 East Philadelphia
       Street, York Pennsylvania. Following further investigation,

*
    Former Justice specially assigned to the Superior Court.
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      [Dejesus] was arrested for failing to register in violation of
      Megan's Law.

Trial Court Opinion, 6/23/11, at 1-2 (footnotes omitted).

      Appellant was convicted by a jury of failure to comply with sexual

offenders’ registration.   The Commonwealth served notice of its intent to

seek the five-year mandatory sentence. The trial court sentenced Appellant

to five to fifteen years imprisonment. On direct appeal, Appellant challenged

the sufficiency of the evidence underlying his conviction.       This Court

affirmed, Commonwealth v. Dejesus, 48 A.3d 473 (Pa.Super. 2012), and

our Supreme Court denied allowance of appeal.           Commonwealth v.

DeJesus, 50 A.3d 124 (Pa. August 13, 2012).

      Appellant filed a pro se PCRA petition on November 8, 2012, and the

PCRA court appointed counsel.     Counsel filed an amended petition on his

behalf, and following an evidentiary hearing, the PCRA court denied relief.

This Court affirmed on appeal.     Commonwealth v. Dejesus, 2014 Pa.

Super. Unpub. LEXIS 3559.

      Appellant filed this, his second PCRA petition on October 23, 2014, and

an amended version on October 26, 2015.        On April 22, 2015, the PCRA

court issued Rule 907 notice and a thorough memorandum explaining why

Appellant’s reliance upon Alleyne v. United States, 133 S.Ct. 2151 (2013),

for a timeliness exception was misplaced. The court subsequently dismissed

the petition as untimely on May 18, 2015. Appellant timely appealed. He



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presents eleven issues for our review, many of which are citations to the

trial transcript together with a request that we pay close attention to certain

testimony, and argument as to why he was wrongly convicted.                 Appellant

also contends, however, that the United States Supreme Court decision in

Alleyne announced a new constitutional right so as to avoid the PCRA time

bar and that the trial court imposed an illegal and unconstitutional

mandatory sentence.

      In reviewing the dismissal of a PCRA petition, our standard of review is

whether the determination of the PCRA court is supported by evidence of

record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231,

233 (Pa.Super. 2012) (citation and quotation marks omitted). Our scope of

review “is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level." Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014).

      In order to be timely, all PCRA petitions, even second and third

petitions, must be filed within one year after the defendant's judgment of

sentence becomes final. 42 Pa.C.S. § 9545 (b)(1). “The PCRA's timeliness

requirements are jurisdictional; therefore, a court may not address the

merits   of   the   issues   raised   if   the   petition   was   not   timely   filed.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012); accord Brandon,

supra at 234 (citing Commonwealth v. Robinson, 837 A.2d 1157, 1161




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(Pa. 2003)) ("The timeliness requirements of the PCRA are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely petitions.").

      "There are three exceptions to this [one-year] time requirement: (1)

interference by government officials in the presentation of the claim; (2)

newly discovered facts; and (3) an after-recognized constitutional right."

Brandon, supra at 233-34; 42 Pa.C.S. § 9545(b)(1)(i-iii). "The PCRA

squarely places upon the petitioner the burden of proving an untimely

petition fits within one of the three exceptions."    Jones, supra at 17. In

addition, the exception must be asserted within sixty days of the date when

the claim could have been presented.

      Appellant's judgment of sentence was affirmed by this Court on April

10, 2012, and allowance of appeal was denied by the Supreme Court on

August 13, 2012. Since Appellant did not seek review to the United States

Supreme Court, his conviction became final upon expiration of the period for

seeking review, which was ninety days later on November 13, 2012.             42

Pa.C.S. § 9545 (b)(3) ("For purposes of this subchapter, 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.”); see U.S.

Sup. Ct. R. 13(1) (stating petition for a writ of certiorari is timely when filed

within 90 days after entry of the judgment).         Appellant thus had until




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November 13, 2013, to file a timely PCRA petition. The within petition, filed

on October 23, 2014, is untimely.

       However, Appellant asserts that           he   falls within the   timeliness

exception for a newly recognized constitutional right.        He alleges that the

United States Supreme Court recognized a new constitutional right in

Alleyne, supra, that is implicated herein. The Court therein held that “facts

that increase mandatory minimum sentences must be submitted to the jury”

and must be found beyond a reasonable doubt. Alleyne, supra at 2163.

       Alleyne does not provide an exception to the PCRA time-bar.            Even

assuming that Alleyne announced a new constitutional right, neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that Alleyne is to be retroactively applied to cases on collateral review. See

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (“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.”). Thus, it does not meet the requirements for a timeliness

exception pursuant to 42 Pa.C.S. § 9545(b)(1)(iii). 1 Appellant’s petition is

untimely and no relief is due.


____________________________________________


1
    As the Commonwealth notes, even assuming that Alleyne v. United
States, 133 S.Ct. 2151 (June 17, 2013), recognized a new constitutional
right that applied retroactively to cases where judgment of sentence had
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2016




                       _______________________
(Footnote Continued)

become final, the within petition was still untimely as it was filed more than
one year after that decision.



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