J-S27024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAVIER HUMBERTO TORO A/K/A                 :
    JAVIER HUMBERTO TORO-DELGADO               :
                                               :   No. 1727 EDA 2016
                      Appellant                :

                   Appeal from the PCRA Order May 16, 2016
                In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001159-2013,
             CP-39-CR-0004647-2012, CP-39-CR-0004650-2012,
                            CP-39-CR-0004656-2012


BEFORE:       GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 11, 2017

        Javier Humberto Toro, a/k/a, Javier Humberto Toro-Delgado (Toro)

appeals, pro se, from the order entered on May 16, 2016, in the Court of

Common Pleas of Lehigh County, dismissing his second petition filed

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

without a hearing. In this timely appeal, Toro claims his sentence is illegal

pursuant to the United States Supreme Court decision in Alleyne v. United

States, 133 S.Ct. 2151 (2013).1 After a thorough review of the submissions
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Alleyne held that any fact that, by law, increased the penalty for a crime
is an element of that crime and must, therefore, be submitted to the jury
and found beyond a reasonable doubt.         Because mandatory minimum
(Footnote Continued Next Page)
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by the parties, relevant law, and the certified record, we find that Toro’s

PCRA petition was untimely filed and therefore we are without jurisdiction to

address the substance of his claim. Accordingly, we affirm the order denying

him relief.2

      Instantly, the certified record demonstrates Toro entered into an open

plea, regarding four separate docket numbers, before the Honorable William

E. Ford on September 19, 2013. Toro pled guilty to two counts of robbery

and single counts of theft by unlawful taking, simple assault, disorderly

conduct, and driving while under suspension.3       On November 4, 2013,

following a presentence investigation and sentencing hearing, Toro received

                       _______________________
(Footnote Continued)

sentences increase the penalty, any factor relied upon to impose the
mandatory minimum sentence must be submitted to the jury. Although
Toro cites two different mandatory minimum sentencing statues in his
Appellant’s brief, we believe he is referring 42 Pa.C.S. § 9712, which
imposed a five-year mandatory minimum sentence for visibly possessing a
firearm during the commission of a crime of violence.
2
   The PCRA court did not address the timeliness issue. However, the
Commonwealth has argued that Toro’s petition was untimely and, as
timeliness is a jurisdictional issue, we may raise that issue sua sponte. See
Commonwealth v. Blystone, 119 A.3d 306, 311 (Pa. 2015) (appellate
court may raise issue of jurisdiction sua sponte).          We further note,
“According to the ‘right-for-any-reason’ doctrine, appellate courts are not
limited by the specific grounds raised by the parties or invoked by the court
under review, but may affirm for any valid reason appearing as of record.”
Commonwealth v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016).
3
  18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2701(a)(1), 5503(a)(4) and 75
Pa.C.S. § 1543(a), respectively. In exchange for the plea, several other
charges, including several firearms charges and additional robbery charges
were withdrawn.



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an aggregate term of 10 – 20 years’ incarceration.      The sentences on the

robbery charges were 10 – 20 years’ each; all sentences were concurrent.

Toro did not file a direct appeal. Accordingly, his sentence became final on

December 4, 2013, when the 30-day period allowed for filing a timely appeal

expired.
      On October 30, 2014, Toro filed his first PCRA petition. Counsel was

appointed, the PCRA court denied him relief and on February 26, 2016, a

panel of our Court affirmed.      See Commonwealth v. Toro, 2016 WL

764775 (2/26/2016) (unpublished memorandum).

      On April 26, 2016, more than 27 months after his sentence became

final, Toro filed this, his second PCRA petition, alleging his sentence was

illegal pursuant to the U.S. Supreme Court case, Alleyne v. United States,

supra. Toro claims that Alleyne, which essentially rendered void a majority

of Pennsylvania’s mandatory minimum sentencing statutes, retroactively

voided his sentence, rendering it illegal.       The PCRA court, following

Pa.R.Crim.P. 907 notice, denied Toro relief, having determined he had not

presented a prima facie case for relief.   While we agree with the PCRA court

that Toro is not entitled to relief, we arrive at our resolution by different

reasoning.

      A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the petitioner’s judgment of sentence

became final. Here, Toro’s judgment of sentence became final on December



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4, 2013. The instant petition was not filed until April 26, 2016. The petition

is facially untimely by more than two years.     However, Toro attempts to

avoid the timeliness requirements by invoking Alleyne.           Toro argues

Alleyne provided a substantive change to the law and thereby rendered the

mandatory minimum sentencing statue that was applied to him void ab initio

and, therefore, he is entitled to retroactive application of Alleyne.      He

further claims Alleyne removes his argument from the timeliness rules

imposed by the PCRA.4 His argument unavailing.

       We have searched the certified record and nowhere is it recorded that

Toro was subjected to the mandatory minimum sentencing provisions of 42

Pa.C.S. § 9712. Even if Toro’s petition had been timely filed, Alleyne does

not apply to his sentence, Toro would not obtain any benefit therefrom.

       Because Toro’s petition is untimely, and he has not pled nor proven

any timeliness exception, he is not entitled to relief. Therefore, we affirm

the PCRA court’s order of May, 16, 2016, albeit on different grounds.

       Order affirmed.




____________________________________________


4
  To be clear, Toro is not claiming entitlement to any of the three statutory
timeliness exceptions. He is arguing that such requirements do not apply
given that his sentence was never legal.




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J-S27024-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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