J-S51033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

JOSE MANUEL CASTILLO,

                            Appellant                     No. 3236 EDA 2015


                  Appeal from the PCRA Order October 8, 2015
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0000062-2010


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

MEMORANDUM BY PLATT, J.:                                 FILED AUGUST 09, 2016

        Appellant, Jose Manuel Castillo, appeals pro se from the dismissal of

his second petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the following facts and procedural history from the PCRA

court’s September 17, 2015 order, and our independent review of the

certified record.     On October 14, 2011, Appellant entered an open guilty

plea1 to the charge of murder of the third degree, and a nolo contendere

plea to theft by unlawful taking.              The charges arose from Appellant’s
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*
    Retired Senior Judge assigned to the Superior Court.
1
  Although the docket reflects that Appellant entered a negotiated plea, the
length of Appellant’s sentence remained open.        (See N.T. Guilty Plea
Hearing, 10/14/11, at 31).
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November 17, 2009 actions in striking his “friend” in the head with a brick,

thereby causing his death, and then allegedly robbing him of approximately

$1,250.00. (N.T. Guilty Plea Hearing, 10/14/11, at 8; see id. at 26). The

court sentenced Appellant on December 19, 2011, to an aggregate term of

incarceration of not less than twenty nor more than forty years, plus

$1,250.00 restitution.      (See N.T. Sentencing, 12/19/11, at 39-40).

Appellant did not file a direct appeal.

      On June 12, 2012, Appellant filed a timely pro se first PCRA petition.

The court appointed counsel who filed a motion to withdraw on September

14, 2012. Appellant filed a pro se response to the motion to withdraw on

September 27, 2012.      On November 30, 2012, after a hearing, the PCRA

court granted counsel’s motion to withdraw, and denied Appellant’s petition.

On December 11, 2013, Appellant filed an appeal of the PCRA court’s order,

which this Court quashed as untimely on April 30, 2014.

      On August 25, 2015, Appellant filed the instant, second PCRA petition

pro se. On September 17, 2015, the court provided Appellant with Rule 907

notice of its intent to dismiss the petition without a hearing.         See

Pa.R.Crim.P. 907(1). Appellant responded pro se on October 5, 2015. On




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October 8, 2015, the PCRA court dismissed Appellant’s petition. Appellant

timely appealed.2

       Appellant raises two questions for our review.

       I.     Did the [PCRA c]ourt err in dismissing the instant [PCRA
       p]etition as untimely when the instant petition was filed within
       sixty (60) days of learning of the United States Supreme Court’s
       decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),
       thereby rendering his sentence unconstitutional and illegal?

       II.    Did the [PCRA c]ourt err in dismissing the instant [PCRA
       p]etition by stating the [c]ourt lacked jurisdiction to consider the
       merits when the [PCRA c]ourt always retains jurisdiction to
       correct an illegal sentence and the inherent power to do so?

(Appellant’s Brief, at 4) (underlining omitted).

              This Court examines PCRA appeals in the light most
       favorable to the prevailing party at the PCRA level. Our review
       is limited to the findings of the PCRA court and the evidence of
       record[.] Additionally, [w]e grant great deference to the factual
       findings of the PCRA court and will not disturb those findings
       unless they have no support in the record. In this respect, we
       will not disturb a PCRA court’s ruling if it is supported by
       evidence of record and is free of legal error. However, we afford
       no deference to its legal conclusions. [W]here the petitioner
       raises questions of law, our standard of review is de novo and
       our scope of review is plenary.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).



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2
  The court did not order Appellant to file a Rule 1925(b) statement. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on November 5,
2015 in which it relied on the reasons stated in its September 17, 2015
opinion in support of its decision. See Pa.R.A.P. 1925(a).



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      Here, the PCRA court found that Appellant’s petition was untimely and

that he failed to plead and prove any exception to the PCRA time-bar, thus

depriving it of jurisdiction. (See Order, 9/17/15, at unnumbered pages 3-

5). We agree.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        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.       The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      In the case sub judice, Appellant’s judgment of sentence became final

on January 18, 2012, thirty days after his judgment of sentence was

imposed and he failed to file an appeal in this Court. See Pa.R.A.P. 903(a);

42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date, or

until January 18, 2013, to file a petition for collateral relief unless he pleaded

and proved that a timeliness exception applied.          See 42 Pa.C.S.A. §§

9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on August 25,

2015, is untimely on its face, and we lack jurisdiction to consider its merits,

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unless he pleads and proves the applicability of one of the statutory

exceptions to the time-bar.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three   exceptions     to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).    Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within [sixty] days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant is attempting to claim the applicability of the newly

discovered facts exception.        (See Appellant’s Brief, at 8); see also 42

Pa.C.S.A. § 9545(b)(1)(ii).       Specifically, he argues that the United States

Supreme Court’s holding in Alleyne is a newly discovered fact, and that he

timely filed his petition because he did so within sixty days of learning of the

decision. (See Appellant’s Brief, at 8). We disagree.


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       [A] claim of newly discovered evidence pursuant to section
       9545(b)(1)(ii) . . .

           requires that the facts upon which such a claim is
           predicated must not have been known to appellant, nor
           could they have been ascertained by due diligence.
           Therefore, . . . the petitioner must establish that: 1) the
           facts upon which the claim was predicated were unknown
           and 2) could not have been ascertained by the exercise of
           due diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

                                       *       *   *

             [However, o]ur Courts have expressly rejected the notion
       that judicial decisions can be considered newly-discovered facts
       which would invoke the protections afforded by section
       9545(b)(1)(ii). See Commonwealth v. Watts, 611 Pa. 80, 23
       A.3d 980, 986 (2011) (holding, a judicial opinion does not
       qualify as a previously unknown “fact” capable of triggering the
       timeliness exception set forth in section 9545(b)(1)(ii) of the
       PCRA; “section 9545(b)(1)(ii) applies only if the petitioner has
       uncovered facts that could not have been ascertained through
       due diligence, and judicial determinations are not facts”);
       Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super.
       2012) (same). . . .

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (some case citations omitted). Based on the

foregoing, Appellant’s claim that the decision in Alleyne is a newly

discovered fact for purposes of the PCRA time-bar fails.3 See id.


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3
  We also observe that, in any event, “Alleyne does not apply retroactively
to cases pending on collateral review[.]” Commonwealth v. Washington,
____ A.3d ____, 2016 WL 3909088, at *8 (Pa. filed July 19, 2016).




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       Moreover, Appellant's allegation that he complied with the sixty–day

requirement set forth in section 9545(b)(2) also fails where he filed his

petition over two years after the decision in Alleyne. (See Appellant’s Brief,

at 8); see also Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super.

2012) (“[T]he sixty-day period begins to run upon the date of the underlying

judicial decision.     Ignorance of the law does not excuse [an appellant’s]

failure to file his petition within the [sixty] days following the [court’s]

decision[.]”) (citations and quotation marks omitted).

       Hence, Appellant has failed to meet his burden of pleading and proving

the applicability of an exception to the PCRA time-bar. See Jones, supra at

16-17; Johnston, supra at 1126.                Therefore, we conclude that the PCRA

court properly dismissed his untimely petition without a hearing on the basis

that it lacked jurisdiction.4 See Henkel, supra at 20.

       Order affirmed.




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4
  Although Appellant argues in his second issue that, because he challenges
the legality of his sentence, the PCRA court retained jurisdiction, whether or
not his petition was untimely, (see Appellant’s Brief, at 4, 12-14), we
observe: “[T]hough not technically waivable, a legality [of sentence] claim
may nevertheless be lost should it be raised . . . in an untimely PCRA
petition for which no time-bar exception applies, thus depriving the [C]ourt
of jurisdiction over the claim. . . .” Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014) (citation omitted).         Therefore, Appellant’s
argument in this regard lacks merit.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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