J-S50010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

CRISTOBAL MORALES

                           Appellant                   No. 188 MDA 2016


                 Appeal from the PCRA Order January 12, 2016
        in the Court of Common Pleas of Berks County Criminal Division
                      at No(s): CP-06-CR-0001032-2013
                                 CP-06-CR-0003684-2009

BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 30, 2016

        Appellant, Cristobal Morales, appeals pro se from the order entered in

the Berks County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition as untimely. Appellant contends that his July 8,

2013 sentence2 following his convictions for possession of a controlled

substance with intent to deliver3 (“PWID”) is illegal under Alleyne v. United

States, 133 S. Ct. 2151 (2013).4 We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  Docket No. CP-06-CR-0003684-2009 is not before us on appeal. In that
instance, Appellant was sentenced on convictions for aggravated assault,
simple assault, and resisting arrest to a term of 29 days to 23 months’
imprisonment followed by two years’ probation. Appellant only raises issues
relating to his mandatory sentence in Docket No. CP-06-CR-0001032-2013.
3
    35 P.S. § 780-113(a)(30).
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        On July 8, 2013, the trial court sentenced Appellant to an aggregate

term of 5-13 years’ imprisonment for two counts of PWID. Appellant did not

file a direct appeal. On July 17, 2015, Appellant filed a pro se PCRA petition.

The PCRA court appointed counsel on December 10, 2015. Counsel filed a

“no-merit” letter requesting leave to withdraw appearance 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

PCRA court granted counsel leave to withdraw.

        On December 14, 2015, the PCRA court filed a notice of intent to

dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a written response to

the Rule 907 notice. On January 12, 2016, the PCRA court dismissed the

petition as untimely without a hearing.          This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.5        Appellant raises the following issue for our


4
    We note that Alleyne was decided on June 17, 2013.
5
    Appellant raised the following issues in his Rule 1925(b) statement:

           1) Did the PCRA court err and abused [sic] its discretion by
           dismissing Appellant’s [PCRA petition] without a hearing?

           2) Did the PCRA court err and abused [sic] its discretion by
           claiming Appellant’s [PCRA petition] was untimely?

           3) Is Alleyne v. United States retroactive?

1925(b) Concise Statement of Errors Complained of on Appeal, 2/16/16, at
1-2 (unpaginated).



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review: “As applied, is 42 Pa. C.S.A. § 9543 unconstitutional?” Appellant’s

Brief at 8.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

Before weighing the substantive merits of Appellant’s arguments, however,

we consider whether this Court has jurisdiction over the present case. If the

PCRA petition is untimely, then there is no subject matter jurisdiction over

the case.     Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa.

2008). As our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in
         nature and, accordingly, a PCRA court is precluded from
         considering untimely PCRA petitions.             See, e.g.,
         Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
         2000) (stating that “given the fact that the PCRA’s
         timeliness requirements are mandatory and jurisdictional
         in nature, no court may properly disregard or alter them in
         order to reach the merits of the claims raised in a PCRA
         petition that is filed in an untimely manner”);
         Commonwealth v. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
         (holding that where a petitioner fails to satisfy the PCRA
         time requirements, this Court has no jurisdiction to
         entertain the petition). [The Pennsylvania Supreme Court
         has] also held that even where the PCRA court does not
         address the applicability of the PCRA timing mandate, th[e
         Court would] consider the issue sua sponte, as it is a
         threshold question implicating our subject matter
         jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (parallel

citations omitted). Even if the legality of the sentence itself is in question,


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courts lack jurisdiction to hear an untimely PCRA petition. Fahy, 737 A.2d

at 223 (stating that “[a]lthough 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”).

      In order to satisfy the timeliness requirement, a PCRA petition “must

normally be filed within one year of the date the judgment becomes final . . .

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition

is filed within 60 days of the date the claim could have been presented.”

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (some

citations and footnote omitted). The PCRA enumerates three exceptions to

this time limitation:

         (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).

      This   Court      has   addressed    whether   Alleyne   creates   a   new

constitutional right that applies retroactively to untimely PCRA petitions. We



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held in Commonwealth v. Ruiz, 131 A.3d 54, 58 (Pa. Super. 2015), that

Alleyne does not satisfy the requirements of the PCRA time-bar exception.

As this Court has explained:

         It is also settled that Alleyne does not invalidate a
         mandatory minimum sentence when presented in an
         untimely PCRA petition. See Commonwealth v. Miller,
         102 A.3d 988 (Pa. Super. 2014). In concluding Alleyne
         does not satisfy the new retroactive constitutional right
         exception to the PCRA’s one year time bar, 42 Pa.C.S. §
         9545(b)(1)(iii), the Miller Court explained:

            Even assuming that Alleyne did announce 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. This is fatal to Appellant’s argument regarding
            the PCRA time-bar. 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 our Supreme Court specifically
            holds it to be retroactively applicable to those cases.

         Id. at 995 (citations omitted) (emphasis supplied).

Ruiz, 131 A.3d at 58. Therefore, a claim involving Alleyne “may be raised

[only] on direct appeal, or in a timely filed PCRA petition.” Id. at 60.

      Appellant was sentenced on July 8, 2013.        Appellant did not file a

direct appeal.   Thus, his judgment of sentence became final on August 7,

2013. See 42 Pa.C.S. § 9545(b)(3) (providing “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[ ]”). Appellant generally



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had until August 7, 2014, to file his PCRA petition.        Appellant filed the

instant petition on July 17, 2015. Therefore, it is facially untimely.

      Appellant argues that the United States Supreme Court’s decision in

Alleyne provides a new constitutional rule of law that applies retroactively

to his case. Appellant’s Brief at 11. Moreover, he argues that PCRA time

restrictions   cannot   apply   to   sentences    that   were    later   deemed

unconstitutional as they are “void ab initio.” Id. at 13-14. We find no relief

is due.   Alleyne does not apply retroactively to an untimely PCRA.        See

Ruiz, 131 A.3d at 60. Appellant did not plead and prove any exception to

the PCRA’s timeliness requirement.      See Copenhefer, 941 A.2d at 648.

Therefore, the PCRA court lacked jurisdiction to consider the legality of

Appellant’s sentence. See Whitney, 817 A.2d at 477-78; Fahy, 737 A.2d

at 223.    The PCRA court did not err in dismissing his PCRA petition as

untimely. See Wilson, 824 A.2d at 833.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2016




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