J-S56041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

MARIO ADORNO-MARTINEZ,

                            Appellant                        No. 3467 EDA 2016


                 Appeal from the PCRA Order October 21, 2016
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0005089-2005


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

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

        Appellant, Mario Adorno-Martinez, appeals pro se from the October 21,

2016 order denying his second petition filed pursuant to the Post Conviction

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

        We take the factual and procedural history in this matter from our

review of the certified record. On May 15, 2006, Appellant pleaded guilty to

rape of a child, corruption of minors, and endangering the welfare of a

child.1 The court deferred sentencing until the Sexual Offender Assessment

Board     determined     Appellant’s    sexually   violent   predator   status.   On

September 7, 2006, the trial court sentenced Appellant to an aggregate term

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    See 18 Pa.C.S.A. §§ 3121(c), 6301, and 4304, respectively.
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of not less than ten nor more than twenty-five years of incarceration, and

found that Appellant is a sexually violent predator. This Court affirmed the

judgment of sentence on July 19, 2007. (See Commonwealth v. Adorno-

Martinez, 932 A.2d 248 (Pa. Super. 2007) (unpublished memorandum)).

Appellant did not petition our Supreme Court for an allowance of appeal.

       On June 9, 2008, Appellant filed his first PCRA petition.        The PCRA

court appointed counsel, who filed a Turner/Finley “no-merit” letter and

petition to withdraw as counsel.2              On July 15, 2009, the PCRA court

dismissed Appellant’s first petition and granted counsel’s petition to

withdraw.     On February 25, 2010, this Court quashed Appellant’s appeal.

Appellant did not petition our Supreme Court for an allowance of appeal.

       On July 29, 2016, Appellant, pro se, filed the instant second PCRA

petition. On September 22, 2016, the PCRA court gave notice of its intent to

dismiss the petition.      See Pa.R.Crim.P. 907(1).      Appellant objected to the

notice of intent to dismiss. On October 21, 2016, the court entered an order

dismissing Appellant’s petition as untimely. This timely appeal followed. 3

       Appellant raises four questions for our review:
____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  Pursuant to the PCRA court’s order, Appellant filed his concise statement of
matters complained of on appeal on December 6, 2016. The PCRA court
entered its opinion on December 20, 2016, in which it relied on its October
21, 2016 order dismissing the petition and the September 22, 2016 order of
intent to dismiss. See Pa.R.A.P. 1925.



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      1.   Whether      [A]ppellant’s    sentence        is   illegal   and
      unconstitutional[?]

      2. Whether [A]ppellant[’]s charge 3121(c), 6301, and 4304 is
      illegal and void because the sentencing statute 9718 was found
      to be void and unenforceable[?]

      3. Whether [A]ppellant should have been granted relief due to
      the common plea court[’s] ability to correct an illegal sentence
      where no statutory authorization exists[?]

      4. Is [A]ppellant’s sentence valid as it stands?

(Appellant’s Brief, at 4) (some capitalization omitted).

           Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      The PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

      We begin by addressing the timeliness of Appellant’s petition.

             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



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     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).

     Here, Appellant’s judgment of sentence became final on August 18,

2007, when he declined to petition our Supreme Court for an allowance of

appeal.   Therefore, Appellant had until August 18, 2008, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because he filed the instant

petition on July 29, 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 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

     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


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      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.” 42 Pa.C.S.A. § 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).

      Here, Appellant claims the benefit of the newly recognized and

retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii). (See Appellant’s Brief, at 11-18).   Specifically, he alleges

that the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (2013) (holding that any fact that, by law, increases

penalty for crime must be found beyond reasonable doubt by fact finder),

rendered his sentence illegal. (See id.). We disagree.

      Appellant filed the instant PCRA petition on July 29, 2016, well over

sixty-days after June 17, 2013, the date that Alleyne was decided. See 42

Pa.C.S.A. § 9545(b)(2).    Therefore his petition does not comply with the

PCRA’s rule that petitions invoking an exception to the time-bar must be

filed within sixty days of the date that the claim could have been presented.

See id.



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     Furthermore, “a new rule of constitutional law is applied retroactively

to cases on collateral review only if the United States Supreme Court or the

Pennsylvania Supreme Court specifically holds it to        be retroactively

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,

271 (Pa. Super. 2016) (citation omitted).     Neither Court has held that

Alleyne is applied retroactively. Rather, our Supreme Court has specifically

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

collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016).

     In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the

PCRA’s time-bar. See Robinson, supra at 185–86. 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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