J-S41035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

PABLO URBINA-NEVAREZ,

                            Appellant                No. 2081 MDA 2014


                Appeal from the PCRA Order November 17, 2014
                 in the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0002745-2005


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 17, 2015

        Appellant, Pablo Urbina-Nevarez, 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, without a hearing. We affirm.

        We take the following facts from the PCRA court’s September 9, 2014

Rule 907 Notice and our independent review of the record. On September

11, 2006, a jury convicted Appellant of two counts each of corrupt

organizations, possession of a controlled substance, and possession with

intent to deliver a controlled substance, and one count each of criminal



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*
    Retired Senior Judge assigned to the Superior Court.
J-S41035-15


conspiracy and criminal use of a communication facility.1              The charges

related to Appellant’s involvement in a major cocaine trafficking ring.        On

September 26, 2006, the court imposed an aggregate sentence of not less

than seventeen-and-one-half nor more than thirty-five years’ incarceration,

which included a mandatory minimum pursuant to 18 Pa.C.S.A. § 7508. The

court denied Appellant’s post-sentence motions on October 11, 2006.

Appellant timely appealed, but failed to file a Rule 1925(b) statement, see

Pa.R.A.P. 1925(b), and this Court dismissed the appeal on March 20, 2007.

       On February 13, 2008, Appellant filed a timely pro se first PCRA

petition. Appointed counsel filed an amended petition, and the court held a

hearing on November 10, 2008. The court granted PCRA relief, reinstating

Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely notice

of appeal and Rule 1925(b) statement.             This Court affirmed Appellant’s

judgment of sentence on February 8, 2010, and our Supreme Court denied

his   petition   for   allowance    of   appeal   on   August   25,   2010.   (See

Commonwealth v. Urbina-Nevarez, No. 996 A.2d 16 (Pa. Super. 2010)

(unpublished memorandum), appeal denied, 4 A.3d 1054 (Pa. 2010)).




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1
  18 Pa.C.S.A. §§ 911(b)(3) and 911(b)(4), 35 P.S. §§ 780-113(a)(16) and
(a)(30), and 18 Pa.C.S.A. §§ 903 and 7512, respectively.



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       On September 14, 2011, Appellant filed a counseled first PCRA

petition.2 The court held an evidentiary hearing on January 24, 2012, and

set a briefing schedule. Appellant filed his brief on March 23, 2012, and the

Commonwealth filed a responsive brief on March 26, 2012. The court denied

the petition on May 12, 2012. This Court affirmed the denial of PCRA relief

on July 16, 2013, and Appellant did not file a petition for allowance of appeal

with our Supreme Court.          (See Commonwealth v. Urbina-Nevarez, 82

A.3d 1067 (Pa. Super. 2013) (unpublished memorandum)).

       On June 6, 2014, Appellant filed the instant, second, PCRA petition pro

se.   On September 9, 2014, the court notified Appellant of its intent to

dismiss the petition without a hearing.          See Pa.R.Crim.P. 907(1).    On

September 17, 2014, Appellant responded and, on November 17, 2014, the

court dismissed the petition.          On December 12, 2014, Appellant filed a

timely notice of appeal.       On December 16, 2014, the PCRA court ordered

Appellant to file a Rule 1925(b) statement, which he has failed to do. See

Pa.R.A.P. 1925(b).      The court filed a Rule 1925(a) opinion on January 26,

2015. See Pa.R.A.P. 1925(a).

       Appellant raises one issue for our review:      “Whether the PCRA court

erred by dismissing without a hearing [his] PCRA petition alleging and
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2
  Because the court had granted reinstatement of Appellant’s direct appellate
rights nunc pro tunc, it properly treated this petition as a first PCRA petition
pursuant to Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa.
Super. 2010).



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establishing [that] [he] is entitled to relief for the illegal imposition of the

mandatory minimum sentence?” (Appellant’s Brief, at 4). No relief is due.

            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 record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We 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. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      Before we are able to consider the merits of Appellant’s claim on

appeal, however, we must determine whether the PCRA court properly found

that the petition was untimely, thus depriving us of jurisdiction to decide its

merits.

      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

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       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; emphasis added).3

       Here, Appellant concedes that his PCRA petition was not filed within

one year after his judgment became final on November 24, 2010, which was

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. (See Appellant’s Brief, at 5); see also S.Ct Rule 13.

He argues, however, that his petition is timely pursuant to an exception

found at 42 Pa.C.S.A. § 9545(b)(1). (See id. at 6).4 We disagree.

       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 42 Pa.C.S.A. § 9545(b)(1).   When a

petition is filed outside the one-year time limit, petitioners must plead and
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3
  Appellant states that his legality of sentence challenge is non-waivable.
(See Appellant’s Brief, at 4, 8). However, we observe that, “although
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA’s time limits or one of the enumerated exceptions
thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.
2007).
4
   Appellant also refers to the “AEDPA” (Antiterrorism and Effective Death
Penalty Act).     (See Appellant’s Brief, at 8-9).   This appears to be a
typographical error because he does not expressly discuss that Act, and it is
irrelevant to his claim. (See id.).



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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 60 days of

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

      Here, Appellant attempts to claim the applicability of the newly

recognized constitutional right exception. (See Appellant’s Brief, at 6-11);

see also 42 Pa.C.S.A. § 9545(b)(1)(iii).       Specifically, he argues that

“sentencing enhancements that effect the maximum sentence must be

determined by a [j]ury beyond a reasonable doubt[,]” and, therefore, his

mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508 was

unconstitutional.   (Appellant’s Brief, at 7; see id. at 9-11).   Appellant’s

argument fails.

      We first observe that Appellant repeatedly insists his issue is not

premised on Alleyne v. United States, 133 S.Ct. 2151 (2013), but that it

is grounded instead on the holdings of Commonwealth v. Cardwell, 105

A.3d 748 (Pa. Super. 2014), and Commonwealth v. Thompson, 93 A.3d

478 (Pa. Super. 2014). (See Appellant’s Brief, at 6, 9).

      However, it is well-settled that:


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             Subsection (iii) of Section 9545(b)(1) has two
       requirements. First, it provides that the right asserted is a
       constitutional right that was recognized by the Supreme
       Court of the United States or th[e Pennsylvania Supreme
       C]ourt after the time provided in this section. Second, it
       provides that the right “has been held” by “that court” to apply
       retroactively. Thus, a petitioner must prove that there is a
       “new” constitutional right and that the right “has been
       held” by that court to apply retroactively . . . to cases on
       collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa.

2007)) (some emphasis in original; some emphasis added).

       Here, contrary to Appellant’s argument, Thompson and Cardwell

cannot form the basis of the newly recognized constitutional right exception

because they are Superior Court decisions.       See id.; see also Cardwell,

supra at 748; Thompson, supra at 478.            In addition, the cases did not

(and could not) create a new constitutional right, but instead decided that

mandatory minimum sentences imposed pursuant to 18 Pa.C.S.A. § 7508

were unconstitutional based on the right recognized by Alleyne5 and its

progeny. See Cardwell, supra at 754-55; Thompson, supra at 493-94.

Therefore, because Cardwell and Thompson are not United States or

Pennsylvania Supreme Court cases announcing a new constitutional right,

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5
  The Court in Alleyne announced the rule that “any fact that increases the
mandatory minimum [sentence] is an ‘element’ that must be submitted to
the jury.” Alleyne, supra at 2155.




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Appellant’s attempt to premise a claim of a newly recognized constitutional

right on them fails.

       Moreover, even if Appellant had relied on Alleyne itself, his attempt to

claim the newly recognized constitutional right exception would fail.       First,

Alleyne was decided on June 17, 2013, and Appellant filed his PCRA petition

on June 6, 2014 in contravention of the rule that a PCRA petition seeking to

invoke a timeliness exception must “be filed within 60 days of the date the

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

       Additionally:

       [N]either 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
       is fatal to Appellant’s argument regarding the PCRA time-bar.
       This Court has recognized that a 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.

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (citations

omitted).

       Accordingly, consistent with this Court’s holding in Miller, we conclude

that the PCRA court properly dismissed Appellant’s petition where he failed

to plead and prove a timeliness exception 6 to the PCRA time-bar.            See

Rykard, supra at 1183.7

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6
  To the extent Appellant attempts to plead and prove the previously
unknown fact exception on the basis of a newspaper article allegedly printed
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2015




                       _______________________
(Footnote Continued)

on May 3, 2014. (see Appellant’s Brief, at 6; Motion for PCRA Relief,
6/06/14, at Exhibit 1), we note that he abandons any argument in support
of this claim, and it is waived. (See id. at 7-11); see also Pa.R.A.P.
2119(a)-(b). Moreover, any argument in this regard would lack merit. See
Commonwealth v. Edmiston, 65 A.3d 339, 570-71 (Pa. 2013), cert.
denied, 134 S.Ct. 639 (2013) (“[T]o constitute facts which were unknown to
a petitioner and could not have been ascertained by the exercise of due
diligence, the information must not be of public record[.]”)
7
  We also observe that, even if we had jurisdiction to review Appellant’s
claim on its merits, we would deem his issue waived because he failed to file
a court-ordered Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issue not raised in
a Rule 1925(b) statement deemed waived).



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