J-S39009-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ANTHONY FELICIANO,

                        Appellant                   No. 2590 EDA 2014


                Appeal from the PCRA Order August 7, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0001643-1998



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 07, 2015

      Anthony Feliciano appeals from the August 7, 2014 order dismissing

his PCRA petition as untimely. We affirm.

      On February 9, 1999, a jury found Appellant guilty of possession of a

controlled substance (cocaine) and possession with intent to deliver

(cocaine). The trial court found him guilty of three summary traffic offenses.

On May 7, 1999, the court sentenced Appellant to seven to twenty years

imprisonment based on a mandatory minimum for prior convictions and a

$50,000 fine. No direct appeal was filed.

      Appellant timely filed his first PCRA petition on May 4, 2000. Following

an evidentiary hearing, the court denied relief on November 30, 2000, and

this Court affirmed on September 7, 2001. Commonwealth v. Feliciano,
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788 A.2d 1027 (Pa.Super. 2001) (unpublished memorandum).                The

Supreme Court denied allowance of appeal. Commonwealth v. Feliciano,

796 A.2d 978 (Pa. 2002).

      On June 11, 2014, Appellant filed the instant petition for writ of

habeas corpus, which the trial court treated as a PCRA petition. The PCRA

court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the petition

without a hearing, Appellant filed a response, but the court dismissed the

petition as untimely on August 7, 2014.       Appellant timely appealed and

complied with the PCRA court’s direction to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and the PCRA court issued its

Pa.R.A.P. 1925(a) opinion on September 23, 2014, incorporating the reasons

for dismissal stated in its July 15 and August 7, 2014 opinions.

      Appellant identifies three issues for our review:

      1. Is Appellant entitled to have his sentences vacated and-or
         corrected as illegal sentences?

      2. Did the Pennsylvania Legislature and judicial sentencing
         schemes violate the separation of powers doctrines of the
         Pennsylvania and United States Constitution?

      3. Is there a question of retroactivity relevant in the case at
         bar?

Appellant’s brief at 4.

      In reviewing the denial of PCRA relief, our standard and scope of

review is well-settled.




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      [A]n appellate court reviews the PCRA court's findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. The 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, 775 (Pa.Super. 2014).

      In the instant case, the PCRA court concluded that Appellant’s petition

was facially untimely, no timeliness exception was pled or proven, and that it

lacked jurisdiction to rule on the merits of the petition. The Post-Conviction

Relief Act, 42 Pa.C.S. § 9545(b)(1) provides that, “[a]ny petition . . .

including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final, unless the petition alleges and the

petitioner proves one of the exceptions to the time-bar. The time limitations

of the PCRA are jurisdictional.” Commonwealth v. Crews, 863 A.2d 498

(Pa. 2004).

      The three delineated exceptions to the one year time-bar are set forth

at 42 Pa.C.S. § 9545(b)(1)(i-iii): (1) that the claim was not previously raised

due to governmental interference; (2) that the claim is based on facts that

were not previously known to petitioner and which could not have been

discovered through the exercise of due diligence; or (3) the petition asserts

a new constitutional right that has been held to apply retroactively by either

our state Supreme Court or the United States Supreme Court.         A petition




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invoking one of the statutory exceptions must also be filed within sixty days

of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).


      Appellant’s PCRA petition, which was filed fourteen years after his

judgment of sentence became final, is facially untimely. Although Appellant

did not plead a timeliness exception in his petition, he did so in his response

to the PCRA court’s Rule 907 notice. However, Appellant neglected to argue

timeliness in his original brief filed with this Court, and thus, the issue is

waived. See Purple Orchid, Inc. v. Pa. State Police, 813 A.2d 801, 804

(Pa. 2002); Commonwealth v. Jackson, 431 A.2d 944, 945 n.1 (Pa.

1981). The fact that Appellant devoted his entire reply brief to rebutting the

Commonwealth’s contention that his petition was untimely does not remedy

that deficiency.    See Commonwealth v. Otero, 860 A.2d 1052, 1054

(Pa.Super. 2004) (a reply brief cannot be a vehicle to remedy deficient

discussions   in   an   initial   brief).     Nonetheless,   Appellant’s   timeliness

arguments are unavailing.

      First, Appellant takes issue with the trial court’s characterization of the

within petition as a PCRA petition rather than a petition for writ of habeas

corpus.   If the petition was properly viewed as seeking habeas relief, he

contends that he would not be required to prove a timeliness exception.

Appellant’s reply brief at 4. Appellant maintains that since PCRA relief was

denied, habeas corpus relief is appropriate. Furthermore, since this appeal



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involves what Appellant calls “constitutional structural errors,” he cites

Brecht v. Abrahmson, 507 U.S. 619 (1993), for the proposition that

habeas relief is automatic.

      Appellant’s challenge relates to an illegal sentence and relief is

available under the PCRA for such claims. See 42 Pa.C.S. § 9542. Since we

held in Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), that “[t]he

PCRA subsumes the remedy of habeas corpus with respect to remedies

offered under the PCRA,” habeas corpus relief is not available for the illegal

sentencing claim herein. As we recognized in Commonwealth v. Taylor,

65 A.3d 462 (Pa.Super. 2013), a defendant cannot escape the PCRA time-

bar simply by titling his petition or motion as a writ of habeas corpus.

      Appellant next suggests that the PCRA time-bar does not operate to

preclude his illegal sentencing claim because such claims cannot be waived.

However, even an illegal sentencing claim must be presented in a timely

PCRA petition over which we have jurisdiction. Commonwealth v. Miller,

102 A.3d 988, 994 (Pa.Super. 2014) (en banc); Commonwealth v. Fahy,

737 A.2d 214 (Pa. 1999).

      Finally, Appellant avers that he filed his petition within sixty days of

the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151

(2013), and thus, his petition is timely under the exception for new




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constitutional rights that have been held to apply retroactively. 1   Therein,

the Supreme Court held that the defendant's jury trial rights were infringed

where the federal court applied a federal mandatory minimum statute for

brandishing a firearm where the fact of brandishing was not presented to the

jury or established beyond a reasonable doubt.        Appellant seeks to avail

himself of Alleyne’s holding, and he contends that it should be applied

retroactively based on Commonwealth v. Newman, 99 A.3d 86 (Pa.Super.

2014) (en banc) (applying Alleyne to a case pending on direct appeal from

judgment of sentence when Alleyne was decided).

       Appellant fails to appreciate “the fundamental difference between

retroactivity analysis during a direct appeal and cases on collateral review.”

Commonwealth v. Watley, 81 A.3d 108, 117 n.5 (Pa.Super. 2013) (en

banc). We noted therein that “A new rule applies retroactively in a collateral

proceeding only if (1) the rule is substantive or (2) the rule is a 'watershed

rule of criminal procedure' implicating the fundamental fairness and accuracy

of the criminal proceeding."        Id. (citing Whorton v. Bockting, 549 U.S.

406 (2007) (internal citations omitted); see also Danforth v. Minnesota,

552 U.S. 264 (2008).         Recently, in Commonwealth v. Miller, 102 A.3d

988, 994 (Pa.Super. 2014) (en banc), we found the fact that “neither our
____________________________________________


1
  Appellant’s petition was filed on June 11, 2014, one year after the United
States Supreme Court decided Alleyne v. United States, 133 S.Ct. 2151
(June 17, 2013).



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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” was fatal to Miller’s argument regarding the PCRA time-bar.

Id. Furthermore, as in Miller, supra, Appellant’s Alleyne argument herein

relates to the fact that the court applied a mandatory minimum based on his

prior convictions. In Miller, we relied upon the Supreme Court's decision in

Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998),

reaffirmed in Alleyne, supra at 2160 n.1, holding that the fact of a prior

conviction does not need to be submitted to the jury and found beyond a

reasonable doubt.

     Since Appellant’s petition is untimely on its face and no timeliness

exception applies, the PCRA court properly dismissed the petition.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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