J-S11037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
                  Appellee           :
                                     :
          v.                         :
                                     :
LUIS A. CARINO,                      :
                                     :
                  Appellant          :          No. 1232 MDA 2014

         Appeal from the PCRA Order entered on June 25, 2014
            in the Court of Common Pleas of Berks County,
            Criminal Division, No. CP-06-CR-0005467-2009

COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
                  Appellee           :
                                     :
          v.                         :
                                     :
LUIS A. CARINO,                      :
                                     :
                  Appellant          :          No. 1233 MDA 2014

         Appeal from the PCRA Order entered on June 25, 2014
            in the Court of Common Pleas of Berks County,
            Criminal Division, No. CP-06-CR-0005468-2009

COMMONWEALTH OF PENNSYLVANIA,        :      IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
                  Appellee           :
                                     :
          v.                         :
                                     :
LUIS A. CARINO,                      :
                                     :
                  Appellant          :          No. 1234 MDA 2014

         Appeal from the PCRA Order entered on June 25, 2014
            in the Court of Common Pleas of Berks County,
            Criminal Division, No. CP-06-CR-0005469-2009
J-S11037-15


BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED MARCH 31, 2015

        Luis A. Carino (“Carino”), pro se, appeals from the Order dismissing

his second Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

We affirm.

        On three separate occasions in November and December of 2009,

Carino sold cocaine and marijuana to an undercover police officer. On one

of these occasions, Carino was in possession of a handgun, despite his

prohibition from owning or possessing a firearm. Following Carino’s arrest,

the Commonwealth charged him with various crimes, including possession

with intent to deliver a controlled substance (“PWID”),2 persons not to

possess firearms,3 and other drug-related offenses.           Pursuant to a

negotiated plea agreement, in March 2011, Carino pled guilty to one count

of persons not to possess firearms and three counts of PWID, and the

remaining counts were dismissed.

        Relevant to this appeal, on July 20, 2011, the trial court imposed on

one of Carino’s PWID convictions a mandatory minimum sentence of five to




1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S.A. § 6105(a)(1).

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ten years in prison, pursuant to 42 Pa.C.S.A. § 9712.1,4 based upon Carino’s

admission that he possessed a gun during the commission of PWID.                 See

N.T., 7/20/11, at 5; see also N.T., 3/17/11, at 8 (wherein the trial court

gave Carino notice that the provisions of 9712.1 were applicable). For all of

his convictions, Carino received an aggregate sentence of seven to fourteen

years in prison. Carino did not appeal his judgment of sentence.

     In January 2012, Carino filed a pro se PCRA Petition. The PCRA court

appointed   Carino   counsel,   who   filed   a   no-merit   letter   pursuant    to

Commonwealth         v.   Turner,     544     A.2d   927     (Pa.     1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and

requested permission to withdraw as counsel.         The PCRA court permitted

PCRA counsel to withdraw, and subsequently gave Carino Notice of its

intention to dismiss his Petition without a hearing, pursuant to Pa.R.Crim.P.

907. The PCRA court eventually dismissed the Petition, and Carino did not

appeal the dismissal.

     On May 23, 2014, Carino filed his second PCRA Petition.            The PCRA

court subsequently issued a Rule 907 Notice, concluding that Carino’s

Petition was untimely filed, and he had not proven any of the three




4
  Section 9712.1 provides, in pertinent part, as follows: “Any person who is
convicted of [PWID] …, when at the time of the offense the person or the
person’s accomplice is in physical possession or control of a firearm, … shall
[] be sentenced to a minimum sentence of at least five years of total
confinement.” 42 Pa.C.S.A. § 9712.1(a).


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exceptions to the PCRA’s jurisdictional time-bar.5       On June 25, 2014, the

PCRA court entered an Order dismissing Carino’s second PCRA Petition.

Carino timely filed a pro se Notice of Appeal, after which the PCRA court

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Carino timely filed a Concise Statement.

        On appeal, Carino presents the following issue for our review: “Is []

Carino entitled to relief under the jurisdictional [timeliness] limitation[]

exception under 42 Pa.C.S.A. § 9545(b)(1)(iii)[6] pursuant to the United

States Supreme Court holding in Alleyne v. United States, 133 S. Ct. 2151

(2013)?” Brief for Appellant at 2 (footnote added).7

        We begin by noting our well-settled standard of review: “In reviewing

the    denial   of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

5
    See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
6
  The PCRA’s “newly recognized constitutional right” timeliness exception,
set forth at subsection 9545(b)(1)(iii), provides as follows:

      Any petition under this subchapter, 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 that[] … 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.

42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added).
7
  Although Carino’s pro se brief does not include a separate Statement of
Questions Presented section, as required by Pa.R.A.P. 2116, at the heading
of his Argument section, he lists the issue he presents for our review.

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Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).   Additionally, “issues pertaining to Alleyne go directly to the

legality of the sentence. … Issues relating to the legality of a sentence are

questions of law. Our standard of review over such questions is de novo and

our scope of review is plenary.” Commonwealth v. Fennell, 105 A.3d 13,

15 (Pa. Super. 2014) (citations, quotation marks, ellipses and brackets

omitted).

     At the outset, we observe that Carino does not contest that his second

PCRA Petition is facially untimely. However, according to Carino, he met the

newly recognized constitutional right timeliness exception based upon the

Alleyne decision, which rendered unconstitutional the mandatory minimum

sentencing statute under which he was sentenced, 42 Pa.C.S.A. § 9712.1.

See Brief for Appellant at 2-5, 8; see also Alleyne, 133 S. Ct. at 2163

(holding that “facts that increase mandatory minimum sentences must be

submitted to the jury” and must be found beyond a reasonable doubt); 42

Pa.C.S.A. § 9712.1(c) (providing that “[p]rovisions of this section shall not

be an element of the crime[,]” and that in order for the five-year mandatory

minimum sentence under subsection 9712.1(a) to apply, the court must

determine at sentencing, by a preponderance of the evidence, that the

requirements were met).

     Carino is correct that Alleyne rendered section 9712.1 constitutionally

infirm because the statute allows the sentencing court to determine, by only

a preponderance of the evidence, whether the mandatory minimum applies.

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See Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en

banc); see also Commonwealth v. Watley, 81 A.3d 108, 112 n.2 (Pa.

Super. 2013) (en banc); Commonwealth v. Munday, 78 A.3d 661, 666

(Pa. Super. 2013). Nevertheless, we conclude that Alleyne is unavailing to

Carino’s claim that he met the newly discovered constitutional right

exception to the PCRA’s timeliness requirement.

      Initially, Carino did not raise the exception at section 9545(b)(1)(iii) in

a timely manner. Alleyne was decided on June 17, 2013. Carino did not

file the instant PCRA Petition until May 23, 2014, well over sixty days after

the date the claim could have been presented.                   See 42 Pa.C.S.A.

§ 9545(b)(2) (requiring that any PCRA petition invoking one of the time bar

exceptions must be filed within sixty days from the date the claim could

have been presented); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.   2007)   (stating   that   “[w]ith   regard   to   [a   newly]   recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).

      Additionally, this Court has held that even if Alleyne is interpreted as

enunciating a newly recognized constitutional right, such right is not

applicable retroactively to cases on PCRA review. See Miller, 102 A.3d at

995. Specifically, the Court in Miller held as follows:

      Even assuming that Alleyne did announce a new
      constitutional right, neither our 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. … This Court has recognized that a

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      new rule of constitutional law is applied retroactively to cases on
      collateral review only if the United States Supreme Court or our
      Supreme Court specifically holds it to be retroactively applicable
      to those cases.

Id. (emphasis in original, citations omitted); see also U.S. v. Reyes, 755

F.3d 210, 213 (3d Cir. 2014) (stating that “the decision to make Alleyne

retroactive rests exclusively with the Supreme Court, which has not chosen

to do so.”). We acknowledge that Carino’s claim concerning Alleyne goes to

the legality of his sentence; nevertheless, this Court has held that “although

illegal sentencing issues cannot be waived, they still must be presented in a

timely PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.

Super. 2013). Accordingly, because Alleyne is unavailing to Carino,8 and he

failed to meet the newly recognized constitutional right exception, the PCRA

court properly dismissed Carino’s second PCRA Petition as untimely.

      Accordingly, we affirm the PCRA court’s Order dismissing Carino’s

second PCRA Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/31/2015



8
  Carino’s remaining claims based upon Alleyne, see Brief for Appellant at
5-7 (challenging lack of notice and constructive denial of counsel at
sentencing), likewise do not entitle him to relief.

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