J-S48040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MIGUEL ANGEL PAGAN,

                            Appellant                 No. 287 MDA 2017


                 Appeal from the PCRA Order January 20, 2017
               in the Court of Common Pleas of Lancaster County
               Criminal Division at Nos.: CP-36-CR-0001452-2012
                            CP-36-CR-0001508-2012

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 19, 2017

        Appellant, Miguel Angel Pagan, appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

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

        The PCRA court aptly set forth the relevant facts and procedural

history1 of this case as follows:

              On August 15, 2012, [Appellant], represented by counsel,
        appeared before the [c]ourt and, pursuant to a plea agreement,
        pled guilty to the sexual offenses charged in two separate
        criminal informations.  On No. 1452-2012, [Appellant] pled
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*
    Retired Senior Judge assigned to the Superior Court.
1
  We note that the court generally applied the prisoner mailbox rule in
providing the dates for Appellant’s pro se filings. See Commonwealth v.
Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).
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        guilty to involuntary deviate sexual intercourse with a person
        less than 16 years old [(IDSI)], unlawful contact with a minor,
        statutory sexual assault and corruption of minors.          These
        offenses took place between November 25, 2011, and February
        10, 2012, in East Lampeter Township, Lancaster County. On No.
        1508-2012, [Appellant] pled guilty to the same offenses during
        the same time period in Manheim Township, Lancaster County.
        In each case, the same fifteen year old female was the victim.

              The [c]ourt accepted [Appellant’s] guilty plea after [he]
        completed a written and oral colloquy during which [he] had the
        assistance of an interpreter. The [c]ourt imposed an aggregate
        sentence of 8 to 16 years [of] incarceration as provided in the
        plea agreement. [Appellant] did not file a post sentence motion
        or an appeal to the Superior Court. As a result, his judgment of
        sentence became final thirty days after imposition.

              [Appellant] filed a pro se PCRA petition on June [22],
        2015, and counsel was appointed to represent him. On August
        27, 2015, counsel sent a no-merit letter to the [c]ourt, with a
        copy to [Appellant], stating her opinion that [his] claims were
        untimely and also lacked substantive merit. [Appellant] then
        filed another petition for post conviction relief on August 31,
        2015, which was forwarded to counsel. The [c]ourt issued a
        Rule 907 Notice and, on November 4, 2015, entered an order
        dismissing [Appellant’s] petition.

              [Appellant] filed a timely notice of appeal and the Superior
        Court affirmed the [c]ourt’s order on May 17, 2016. (See
        Commonwealth v. Pagan, 2016 WL 2955482, at *1 (Pa.
        Super. filed May 17, 2016) (unpublished memorandum)). By
        order dated October 27, 2016, [Appellant’s] petition for
        allowance of appeal was denied. (See Commonwealth v.
        Pagan, 160 A.3d 768 (Pa. 2016)).

              On August 15, 2016, while [Appellant’s] petition for
        allowance of appeal was pending, he filed a motion to vacate
        sentence and for resentencing based on Commonwealth v.
        Wolfe, 140 A.3d 651 (Pa. 2016).[2] The [c]ourt treated this
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2
    Relevant to the instant appeal,

(Footnote Continued Next Page)


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      motion as one for post conviction collateral relief.     See
      Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.
      2011), appeal denied, 47 A.3d 845 (Pa. 2012). The [c]ourt
      issued a Rule 907 Notice, and on January 20, 2017, entered an
      order dismissing the motion, without a hearing, for lack of
      jurisdiction. . . .

(PCRA Court Opinion, 3/28/17, at 1-3) (citation formatting provided;

footnotes and one record citation omitted). This timely appeal followed. 3

      Appellant raises the following question for our review: “Did the court

error [sic] in determining that [A]ppellant failed to invoke an exception to

the timeliness requirements of the PCRA statute?” (Appellant’s Brief, at 6).

      As an initial matter, we must address the timeliness of Appellant’s

PCRA petition.

                       _______________________
(Footnote Continued)

             [i]n 2013, the Supreme Court of the United States issued
      its Alleyne v. United States, 133 S.Ct. 2151 (2013) decision,
      overruling its prior precedent. Alleyne held that any fact that,
      by law, increases the penalty for a crime must be treated as an
      element of the offense, submitted to a jury, rather than a judge,
      and found beyond a reasonable doubt. See Alleyne, supra at
      2163. The effect was to invalidate a range of Pennsylvania
      sentencing statutes predicating mandatory minimum penalties
      upon non-elemental facts and requiring such facts to be
      determined by a preponderance of the evidence at sentencing.

Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016) (citation
formatting provided; one case citation omitted). Wolfe concerned the
mandatory minimum sentencing provision under 42 Pa.C.S.A. § 9718
(requiring a mandatory minimum sentence of ten years for IDSI), and held
that the provision was constitutionally infirm, under Alleyne. See Wolfe,
supra at 653, 662-63.
3
  Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on March 6, 2017. The PCRA court entered an
opinion on March 28, 2017. See Pa.R.A.P. 1925.



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           In reviewing an order denying post-conviction relief, we
     examine whether the trial court’s determination is supported by
     evidence of record and whether it is free of legal error. Where
     an issue presents a question of law, the appellate court’s
     standard of review is de novo, and its scope of review is plenary.
     ...

            The PCRA provides eligibility for relief in conjunction with
     cognizable claims, . . . and requires petitioners to comply with
     the timeliness restrictions. . . . [A] PCRA petition, including a
     second or subsequent petition, must be filed within one year of
     the date that judgment becomes final. A judgment becomes
     final for purposes of the PCRA 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.

            It is well-settled that the PCRA’s time restrictions are
     jurisdictional in nature.      As such, this statutory time-bar
     implicates the court’s very power to adjudicate a controversy
     and prohibits a court from extending filing periods except as the
     statute permits.     Accordingly, the period for filing a PCRA
     petition is not subject to the doctrine of equitable tolling;
     instead, the time for filing a PCRA petition can be extended only
     by operation of one of the statutorily enumerated exceptions to
     the PCRA time-bar.

            The exceptions to the PCRA time-bar are found in Section
     9545(b)(1)(i)–(iii) (relating to governmental interference, newly
     discovered facts, and newly recognized constitutional rights),
     and it is the petitioner’s burden to allege and prove that one of
     the timeliness exceptions applies. Whether a petitioner has
     carried his burden is a threshold inquiry that must be resolved
     prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,   139    A.3d   178,   185–86   (Pa.     2016)

(quotation marks and citations omitted).

     In this case, Appellant’s judgment of sentence became final on

September 14, 2012, when his time to file a timely direct appeal expired.

See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had


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until September 14, 2013, to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b)(1). Because Appellant filed the instant petition on August 15, 2016,

it is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time-

bar. See id. at § 9545(b)(1)(i)-(iii).

      As noted, section 9545 of the PCRA provides only three limited

exceptions that allow for review of an untimely PCRA petition:

            (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.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] 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.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).


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        Here, Appellant appears to invoke the newly discovered facts and the

newly    recognized constitutional        rights   exceptions   at   42    Pa.C.S.A.   §

9545(b)(1)(ii) and (iii) by reference to Alleyne, and Wolfe, supra. (See

Appellant’s Brief, at 14-17).4       Appellant argues that he is entitled to relief

because he is serving an invalid mandatory minimum sentence under the

principles set forth in Alleyne. (See id.). However, as the PCRA court and

the Commonwealth noted, Alleyne is not applicable in this case because

Appellant is not serving a mandatory minimum sentence.                (See PCRA Ct.

Op., at 4-5; Commonwealth’s Brief, at 8, 17). In fact, Appellant’s eight-year

minimum sentence was below the then-applicable mandatory minimum ten-

year term for IDSI, and Appellant was made aware of this at sentencing.

(See N.T. Guilty Plea and Sentencing, 8/15/12, at 34; PCRA Ct. Op., at 4-5).

        Moreover, in Washington, supra, our Supreme Court addressed the

retroactive effect of Alleyne and held “that Alleyne does not apply

retroactively to cases pending on collateral review. . . .”               Washington,

supra, at 820; see also Commonwealth v. Whitehawk, 146 A.3d 266,

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4
  The argument section of Appellant’s brief is rambling, difficult to follow,
and appears to consist chiefly of quotes from judicial opinions without cogent
explanation of how that law applies to the facts of this case.            (See
Appellant’s Brief, at 14-17). Although we could quash this appeal for
Appellant’s undeveloped, defective brief, we decline to do so, in the interest
of judicial economy. See Pa.R.A.P. 2101; see also Commonwealth v.
Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal denied, 879 A.2d 782
(Pa. 2005) (stating pro se litigants must comply with procedural rules and
declining to quash appeal despite defective brief).



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271 (Pa. Super. 2016). Therefore, Appellant’s claims premised on Alleyne

fail.

        In sum, Appellant’s petition is untimely and he has failed to establish

the applicability of any of the three limited exceptions to the PCRA’s

jurisdictional time-bar. Therefore, we conclude that the PCRA court properly

dismissed it without a hearing as untimely. See Robinson, supra at 185;

Jackson, supra at 519. Accordingly, we affirm the order of the PCRA court.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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