J-S85043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
            v.                            :
                                          :
ROBERTO RULLAN,                           :
                                          :
                   Appellant              :           No. 2738 EDA 2015

                    Appeal from the Order August 4, 2015
               in the Court of Common Pleas of Lehigh County,
              Criminal Division, No(s): CP-39-CR-0004046-2011

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED February 27, 2017.

      Roberto Rullan (“Rullan”), pro se, appeals from the Order dismissing

his “Motion to Modify and Correct Sentence, Nunc Pro Tunc.”1 We affirm.

      On July 26, 2012, Rullan entered a negotiated guilty plea to criminal

conspiracy to commit burglary. That same day, pursuant to the guilty plea

agreement, Rullan was sentenced to serve four to ten years in prison.

Rullan did not file a direct appeal.



1
  Any petition or motion filed after the judgment of sentence becomes final
will be treated as a petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v. Jackson,
30 A.3d 516, 521 (Pa. Super. 2011). Indeed, the PCRA is the sole means of
obtaining collateral relief, and subsumes all other remedies where the PCRA
provides a remedy for the claim. See 42 Pa.C.S.A. § 9542 (providing that a
PCRA petition is the “sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when it takes effect, including habeas corpus and coram
nobis.”). In his Motion, Rullan challenges the legality of his sentence.
Because Rullan filed his Motion after his judgment of sentence became final,
and the PCRA provides a remedy for his claims, the Motion must be treated
as a PCRA Petition.
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      On October 24, 2012, Rullan filed a pro se Motion to Reconsider

Sentence, which was patently untimely and dismissed by the trial court. On

November 19, 2012, Rullan filed a pro se PCRA Petition.       The PCRA court

appointed Rullan counsel, who filed an Amended PCRA Petition. The PCRA

court dismissed the Petition on July 2, 2013.

      On June 23, 2015, Rullan filed the instant PCRA Petition, alleging his

sentence was illegal in light of Alleyne v. United States, 133 S. Ct. 2151

(2013).2 The PCRA court dismissed the Petition without a hearing or notice.3

Rullan filed a timely Notice of Appeal.

      On appeal, Rullan raises the following question for our review:

“Whether the [PCRA] court erred [in denying] [Rullan] relief when [he] was

sentenced to a mandatory sentence … [that is] facially unconstitutional,

under the standards set forth under [Alleyne?]” Brief for Appellant at 8.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of record and is free
      of legal error.

2
  In Alleyne, the Supreme Court held that any fact that increases the
sentence for a given crime must be submitted to the jury and found beyond
a reasonable doubt. Alleyne, 133 S. Ct. at 2155. The Court reasoned that
a Sixth Amendment violation occurs where these sentence-determinative
facts are not submitted to a jury. Id. at 2156.
3
  The PCRA court did not provide a Pa.R.Crim.P. 907 Notice. However, the
failure to provide the notice is not reversible error. See Commonwealth v.
Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (holding that “where the PCRA
petition is untimely, the failure to provide [a Rule 907] notice is not
reversible error.”) (citation omitted).


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Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

        Initially, under the PCRA, any PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).

A judgment of sentence 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.”    Id. § 9545(b)(3).    The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.     See Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

        Rullan’s judgment of sentence became final on August 27, 2012, when

the thirty-day period for filing a direct appeal expired.4      See Pa.R.A.P.

903(a); see also 42 Pa.C.S.A. § 9545(b)(3). Rullan had until August 27,

2013, to file a timely PCRA petition. The instant Petition, filed on June 23,

2015, is thus patently untimely.

        However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).    Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

4
    We note that August 26, 2012, fell on a Sunday.


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     Here, Rullan invokes the exception at 42 Pa.C.S.A. § 9545(b)(1)(iii),

and directs our attention to the Alleyne decision. Brief for Appellant at 9.

Rullan argues that he was subjected to a mandatory minimum sentence

pursuant to 42 Pa.C.S.A. § 9714, in violation of Alleyne. Brief for Appellant

at 8-10.

     Initially, our review of the written sentencing order and the sentencing

hearing shows that the trial court did not impose a mandatory minimum

sentence. Rather, the trial court imposed the sentence as set forth in the

plea agreement. See N.T., 7/26/12, at 6, 8, 22, 31.

     However, even if the trial court had imposed a mandatory minimum

sentence, Rullan’s PCRA Petition invoking the exception at 9545(b)(1)(iii)

would nonetheless be untimely.    Alleyne was decided on June 17, 2013.

Rullan filed the instant Petition on June 23, 2015, well over the sixty-day

period in which the claim could have been presented.      See 42 Pa.C.S.A.

§ 9545(b)(2).

     Further, the rule established in Alleyne does not apply retroactively.

See Commonwealth v. Miller, 102 A.3d 988, 955 (Pa. Super. 2014)

(stating that Alleyne does not apply retroactively to defendants whose

judgment of sentence was final prior to June 17, 2013); see also

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (holding

that “Alleyne does not apply retroactively to cases pending on collateral




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J-S85043-16


review.”).   Accordingly, Rullan failed to satisfy the timeliness exception

specified in 42 Pa.C.S.A. § 9545(b)(1)(iii).

      Because Rullan did not satisfy any of the three exceptions necessary to

circumvent the PCRA’s timeliness requirement, we lack jurisdiction to

address the merits of his claim on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/27/2017




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