J-S57037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ROLANDO BARBON ZURITA

                          Appellant                  No. 1181 EDA 2015


            Appeal from the PCRA Order entered April 13, 2015
             In the Court of Common Pleas of Chester County
          Criminal Division at Nos: CP-15-CR-0005791-2004, and
                          CP-15-CR-0005792-2004


BEFORE: MUNDY, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 25, 2015

      Appellant, Rolando Barbon Zurita, pro se, appeals from the April 13,

2015 order entered by the Court of Common Pleas of Chester County,

denying as untimely his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.       Upon review, we

affirm.

      The PCRA court summarized the procedural background of the instant

matter as follows:

      On July 25, 2005, [Appellant] entered into an open guilty plea.
      [Appellant] was sentenced on December 2, 2005. [Appellant]
      filed a timely notice of appeal on December 21, 2005. On
      February 16, 2006, the Superior Court entered an order
      dismissing [Appellant]’s appeal. Thereafter, on October 11,
      2006, [Appellant] filed a pro se PCRA Petition alleging ineffective
      assistance of counsel. On October 12, 2006, this court entered
      an order that, among other things, permitted [Appellant] to
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        proceed in forma pauperis and appointed [Appellant] counsel.
        Subsequently, on November 17, 2006, with the agreement of
        the Commonwealth, [Appellant]’s PCRA Petition, requesting a
        nunc pro tunc appeal to the Superior Court, was granted.

        Defense counsel was directed to file a Notice of Appeal within 30
        days of the date of the order. Defense counsel complied and a
        Notice of Appeal was filed on December 13, 2006. On January
        18, 2007, the appeal was withdrawn and discontinued.
        [Appellant] filed a second PCRA Petition on December 3, 2007.
        Following multiple PCRA pleadings and proceedings, an order
        was entered on March 6, 2009 that granted the PCRA, vacated
        the judgment of sentence, allowed [Appellant] to withdraw his
        guilty plea, reinstated the withdrawn charges, restored the
        parties to their respective positions prior to the entry of the open
        plea and listed the case for trial.

        On May 15, 2009, [Appellant] entered a negotiated plea
        agreement that contained an agreed upon sentence, which the
        court approved. He received the sentence he negotiated in
        return for the guilty plea and the Commonwealth’s withdrawal of
        a number of counts.

PCRA Court Order, 3/20/15, at 1-2 n.1.

        On June 11, 2014, Appellant filed the PCRA petition that is the subject

of this appeal. In his petition, Appellant argued his sentence is illegal under

Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding any fact that

increases a mandatory minimum sentence must be submitted to the jury)1

____________________________________________


1
    In Alleyne, the Supreme Court of the United States held:

        Any 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. Mandatory minimum sentences increase the
        penalty for a crime. It follows, then, that any fact that increases
        the mandatory minimum is an “element” that must be submitted
        to the jury.
(Footnote Continued Next Page)


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and that his petition satisfied the PCRA’s timeliness requirements because he

filed it within sixty days of the clarification of the Alleyne decision provided

by the Blair County Court of Common Pleas on May 14, 2014. Appellant’s

Brief at 9-10. On November 14, 2014, the PCRA court dismissed the instant

petition as untimely. This appeal followed.

      “Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination, and whether the PCRA

court’s determination is free of legal error.      The PCRA court's findings will

not be disturbed unless there is no support for the findings in the certified

record.”   Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citations omitted).

      The PCRA statute directs that any PCRA petition, including a second or

subsequent petition, must be filed within one year of the date the underlying

judgment becomes final unless the petitioner proves an exception.             42

Pa.C.S.A. § 9545(b)(1). “[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.A. § 9545(b)(3).   Further, any

petition claiming an exception under § 9545(b)(1) must be filed within 60

days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545
                       _______________________
(Footnote Continued)


Alleyne, 133 S. Ct. at 2155 (internal citation omitted).



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(b)(2).    “[T]he PCRA’s timeliness requirements are jurisdictional in nature

and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting

Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).

        Appellant’s judgment of sentence became final on June 15, 2009.2

Appellant had, therefore, one year from June 15, 2009 to file his petition.

See 42 Pa.C.S.A. § 9545(b)(1). Absent an exception, his petition filed on

June 11, 2014 is untimely. Appellant asserts his petition is saved from the

PCRA’s time-bar by Alleyne, as explained by the Court of Common Pleas of

Blair County on May 14, 2014.            Appellant’s Brief at 9-10.   We disagree.

Nowhere did Appellant identify or explain the significance of the Blair County

Court of Common Pleas decision.            Because Appellant fails to elaborate on

this matter, we can only address whether Alleyne itself provides support for

the timeliness of his petition.



____________________________________________


2
    The PCRA Court found:

        [Appellant] was sentenced on May 15, 2009. He did not file a
        post-sentence motion or an appeal to the Superior Court on that
        second guilty plea and negotiated sentence.           Therefore,
        [j]udgment of [s]entence became final on June 15, 2009.
        [Appellant]’s PCRA petition needed to be filed by June 15, 2010
        in order to be timely. [Appellant]’s PCRA petition was filed June
        11, 2014. Accordingly, it is untimely.

PCRA Court Order, 3/20/15, at 2 n.1.



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     Alleyne was decided on June 17, 2013, almost a year before Appellant

filed the instant petition (June 11, 2014). In Commonwealth v. Boyd, 923

A.2d 513 (Pa. 2007), our Supreme Court explained:

     [A]ny petition invoking an exception to the PCRA’s timing
     provisions must be filed within sixty days of the date the claim
     first could have been presented. 42 Pa.C.S.A. § 9545(b)(2);
     see also Commonwealth v. Lark, 560 Pa. 487, 494, 746 A.2d
     585, 588 (2000) (a petitioner must plead and prove specific
     facts that demonstrate his claim was raised within the sixty-day
     timeframe). With regard to an after-recognized constitutional
     right, this Court has held that the sixty-day period begins to run
     upon     the   date    of   the   underlying   judicial  decision.
     Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001).

Id. at 517.

     Appellant clearly failed to file his petition within 60 days of the

Alleyne decision.   “[W]hen a PCRA petition [is] entitled to one of the

[§ 9545(b)(1)] exceptions, but [is] not filed within 60 days of the date that

the claim could have been first brought, the PCRA court has no power to

address   the   substantive   merits   of   a   petitioner’s   PCRA   claim.”

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

     To the extent Appellant’s claim can be construed as alleging he learned

of Alleyne only as a result of the Blair County decision of May 14, 2014, we

note that ignorance of the law does not toll the jurisdictional time-

restrictions of the PCRA. In Commonwealth v. Brandon, 51 A.3d 231 (Pa.

Super. 2012), this Court rejected a similar claim, noting that ignorance of

the law does not excuse the failure to file a petition within 60 days of the

date a decision is announced, and stating, “[n]either the court system nor

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the correctional system is obliged to educate or update prisoners concerning

changes in case law.” Id. at 235 (quotation omitted).

     Appellant’s petition was untimely filed. Therefore, this Court, as well

as the PCRA court, lacks jurisdiction to address the substantive issue of

Appellant’s PCRA claim.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




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