J-S51035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FELIX M. OQUENDO, JR.

                            Appellant                No. 3532 EDA 2015


                 Appeal from the PCRA Order October 28, 2015
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No.: CP-39-CR-0002338-2008


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED AUGUST 09, 2016

        Appellant, Felix M. Oquendo, Jr., appeals pro se from the order

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

(PCRA), 42 Pa.C.S.A. §§ 9541–9546, as untimely. Appellant argues that the

mandatory minimum sentence he received violated his constitutional rights,

citing Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015), a direct

appeal.1 We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Hopkins, in turn, relied on Alleyne v. United States, 133 S. Ct. 2151
(2013), filed on June 17, 2013, which held, in effect, that sentence
enhancements under a mandatory minimum sentence provision must be
decided by a jury beyond a reasonable doubt (not by a preponderance of the
evidence). Hopkins decided that 18 Pa.C.S.A. § 6317(a)—which imposed a
mandatory minimum sentence for a conviction if a delivery or possession
(Footnote Continued Next Page)
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      We take the factual and procedural history of the case from the trial

court’s opinions and our independent review of the certified record. A jury

convicted Appellant of possession of a controlled substance, possession with

intent to deliver a controlled substance (PWID), possession of drug

paraphernalia, persons not to possess a firearm, and resisting arrest. On

September 3, 2009, the trial court imposed an aggregate sentence of not

less than nine nor more than twenty years’ incarceration in a state

correctional institution.

      This Court affirmed the judgment of sentence. (See Commonwealth

v. Oquendo, 22 A.3d 1074 (Pa. Super. filed November 18, 2010)).           Our

Supreme Court denied allowance of appeal on July 27, 2011.              (See

Commonwealth v. Oquendo, 26 A.3d 483 (Pa. 2011)). Appellant did not

file a petition for a writ of certiorari with the United States Supreme Court.

Accordingly, his judgment of sentence became final on October 25, 2011,

when the period for seeking such review expired.          See 42 Pa.C.S.A.

§ 9545(b)(3).



                       _______________________
(Footnote Continued)

with intent to deliver a controlled substance occurred within 1,000 feet of,
inter alia, a school—was constitutionally infirm under Alleyne, and the
remaining unoffending provisions of section 6317 were incapable of being
severed. See Hopkins, supra at 258, 262.




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       On December 6, 2011, Appellant filed his first PCRA petition pro se.

The court appointed counsel, who filed an amended petition.       Following a

hearing, on March 20, 2012, the court dismissed the petition.

       On October 6, 2014, Appellant filed a counseled PCRA petition, his

second, requesting relief pursuant to the United States Supreme Court’s

decision in Alleyne, supra. Following a hearing and written responses by

the parties, on April 6, 2015, the PCRA court dismissed the petition as

untimely.

       On July 29, 2015, Appellant filed this third PCRA petition, pro se. On

September 11, 2015, the PCRA court issued an order (dated September 10,

2015) of notice of its intent to dismiss Appellant’s petition, pursuant to

Pa.R.Crim.P. 907.         Appellant responded.   After consideration of the

response, the PCRA court dismissed the petition on October 28, 2015. This

timely appeal followed.2

       Appellant presents two questions for our review:

            1.     Whether the PCRA [c]ourt erred when it denied
       [Appellant’s] [p]etition for [p]ost [c]onviction [r]elief as
       untimely, even though [Appellant] satisfied 42 PA.C.S.A.
       §9545(1) (b)(iii) [sic], §9545(2) [sic], and 42 Pa.C.S. §5505,
       which allows the [c]ourt to retain jurisdiction to correct patent
       and obvious errors?

____________________________________________


2
  Appellant filed a statement of errors on or about November 3, 2015. The
PCRA court filed an opinion on January 11, 2016, referencing the reasoning
set forth in its notice of intent to dismiss filed on September 11, 2015, and
its order of dismissal filed October 28, 2015. See Pa.R.A.P. 1925.



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             2. Whether the PCRA Court erred by not recognizing that
      relief regarding [m]andatory [m]inimum [s]entences must be
      deemed retroactive, because severance of the violative
      provisions from the statute are not in compliance with legislative
      intent, and are thus unconstitutional.      Therefore, this is a
      substantive ruling that must be held retroactive? [sic]

(Appellant’s Brief, at 4).

      On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error. Our standard of review for

questions of law is de novo, and our scope of review is plenary.           See

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

      However, before this Court, or the PCRA court, can review the merits

of a PCRA petition, it must be determined if the petition was timely.

Generally, a PCRA petition must be filed within one year from the date a

judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(1). There are three

exceptions to this time requirement: (1) interference by government officials

with the presentation of the claim; (2) newly discovered facts which could

not have been discovered by the exercise of due diligence; and (3) an after-

recognized constitutional right held to be retroactive.    See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii). When a petitioner pleads and proves that one of these

exceptions is met, the petition will be considered timely.   A PCRA petition

invoking one of these exceptions must be filed within sixty days of the date

the claims could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).




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      The timeliness requirements of the PCRA are jurisdictional in nature

and, accordingly, a PCRA court cannot consider untimely petitions.         See

Commonwealth v. Brandon, 51 A.3d 231, 233–34 (Pa. Super. 2012).

      Here, as previously noted, Appellant’s judgment of sentence became

final on October 25, 2011, when the time for seeking a writ of certiorari from

the United States Supreme Court expired. He had one year to file a timely

PCRA petition. Appellant filed the instant petition on July 29, 2015, almost

four years later. Therefore, Appellant’s petition is untimely on its face unless

he pleads and proves one of the three statutory exceptions to the time-bar.

      Appellant argues, in effect, that the imposition of a mandatory

minimum sentence rendered his sentence illegal. (See Appellant’s Brief, at

7). Citing Hopkins, supra, and Commonwealth v. Jones, 932 A.2d 179,

182 (Pa. Super. 2007), he maintains that his assertion of an illegal sentence

is non-waivable.   (See id.).    He also argues that the Hopkins decision

should be “deemed retroactive as a substantive ruling.”            (Id. at 5).

Appellant’s arguments do not merit relief.

      Our Supreme Court has explained:

      The PCRA timeliness requirements are jurisdictional in nature
      and, accordingly, a PCRA court is precluded from considering
      untimely PCRA petitions.         See, e.g., Commonwealth v.
      Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given the
      fact that the PCRA’s timeliness requirements are mandatory and
      jurisdictional in nature, no court may properly disregard or alter
      them in order to reach the merits of the claims raised in a PCRA
      petition that is filed in an untimely manner”); Commonwealth
      v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a
      petitioner fails to satisfy the PCRA time requirements, this Court

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    has no jurisdiction to entertain the petition). [The Pennsylvania
    Supreme Court has] also held that even where the PCRA court
    does not address the applicability of the PCRA timing mandate,
    th[e Court could] consider the issue sua sponte, as it is a
    threshold question implicating our subject matter jurisdiction and
    ability to grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 475–76 (Pa. 2003) (some

citations omitted).

      The PCRA’s timeliness rules apply even to claims, such as Appellant’s,

that implicate the legality of a sentence. See Fahy, supra at 223 (claims

challenging legality of sentence are subject to review within PCRA, but must

first satisfy PCRA’s time limits); Commonwealth v. Jackson, 30 A.3d 516,

522 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (“court has

no authority to extend filing periods except as [section 9545] permits”)

(citing Fahy); Jones, supra at 182 (where petitioner files untimely PCRA

petition raising legality of sentence claim, jurisdictional limits of PCRA render

claim incapable of review).       Accordingly, Appellant misapprehends the

import of the holding in Jones. (See Appellant’s Brief, at 7).

      “Though not technically waivable, a legality claim may
      nevertheless be lost should it be raised for the first time in an
      untimely PCRA petition for which no time-bar exception applies,
      thus depriving the court of jurisdiction over the claim.”
      Commonwealth v. Slotcavage, 939 A.2d 901, 903 n.4 (Pa.
      Super. 2007) (citation omitted). “[W]hen a petitioner files an
      untimely PCRA petition raising a legality-of-sentence claim, the
      claim is not waived, but the jurisdictional limits of the PCRA itself
      render the claim incapable of review.” Commonwealth v.
      Jones, 932 A.2d 179, 182 (Pa. Super. 2007).




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Commonwealth v. Wojtaszek, 951 A.2d 1169, 1173 n.9 (Pa. Super.

2008), appeal denied, 963 A.2d 470 (Pa. 2009). Appellant’s “non-waivable”

claim of an illegal sentence does not merit relief.

       Appellant also maintains that he is entitled to an exception pursuant to

42 Pa.C.S.A. § 9545(b)(1)(iii)3 under Hopkins, supra, which, he asserts,

must be deemed to apply retroactively to his appeal.          (See Appellant’s

Brief, at 9). We disagree.

       First, Hopkins was a direct appeal, not a collateral appeal under the

PCRA.    Secondly, as we have already noted, Hopkins relies on Alleyne,

supra for its decision. (“In sum, as detailed above, we find that numerous

provisions of Section 6317 are unconstitutional in light of the United States

Supreme Court’s decision in Alleyne.”). Hopkins, supra at 258.

             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 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. Phillips, 31 A.3d 317, 320 (Pa.
       Super. 2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012),
____________________________________________


3
  Subsection (b)(1)(iii) provides an exception if “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).




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      citing Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 150
      L.Ed.2d 632 (2001); see also, e.g., Commonwealth v.
      Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007) (stating, “for
      purposes of subsection (iii), the language ‘has been held by that
      court to apply retroactively’ means the court announcing the rule
      must have also ruled on the retroactivity of the new
      constitutional right, before the petitioner can assert retroactive
      application of the right in a PCRA petition[ ]”), appeal denied,
      597 Pa. 715, 951 A.2d 1163 (2008). Therefore, Appellant has
      failed to satisfy the new constitutional right exception to the
      time-bar.

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (footnote

omitted).

      Finally, on this issue, we note that our Supreme Court has recently

decided that Alleyne does not apply retroactively to cases pending on

collateral review. See Commonwealth v. Washington, No. 37 EAP 2015

at *16 (Pa. filed July 19, 2016).     Appellant’s judgment of sentence is not

illegal on account of Alleyne. See id.

      In the last part of his first question, Appellant claims that he is entitled

to relief because 42 Pa.C.S.A. § 5505 “allows the [c]ourt to retain

jurisdiction to correct patent and obvious errors[.]” (Appellant’s Brief, at 4).

Appellant’s claim lacks merit.

      Appellant presents a question of law for which our scope of review is

plenary and our standard of review is de novo.        See Commonwealth v.

Holmes, 933 A.2d 57, 65 (Pa. 2007).

      Preliminarily, we note that Appellant confuses the inherent power of a

trial court to correct patent or obvious errors with the more limited statutory


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powers provided in section 5505, not to mention this Court’s independent

role of error correction. Applying section 5505, as Appellant urges us to do,

would have no legal effect, as the power to modify or rescind provided in

section 5505 expires, at the latest, thirty days after the entry of the order in

question.4 Moreover, the statutory provision limit is not relevant, because

Appellant appealed from the judgment of sentence.

        In any event, it is true that trial courts also have inherent power to

correct orders by vacating illegal sentences despite the expiration of the

modification period provided by statute in 42 Pa.C.S.A. § 5505.            See

Holmes, supra at 65.

        However, under controlling authority Appellant’s argument presents no

exception to the statutory time-bar. “[W]hen the one-year filing deadline of

section 9545 has expired, and no statutory exception has been pled or

proven, a PCRA court cannot invoke inherent jurisdiction to correct orders,

judgments and decrees, even if the error is patent and obvious.” Jackson,


____________________________________________


4
    Section 5505 provides:

              Except as otherwise provided or prescribed by law, a court
        upon notice to the parties may modify or rescind any order
        within 30 days after its entry, notwithstanding the prior
        termination of any term of court, if no appeal from such order
        has been taken or allowed.

42 Pa.C.S.A. § 5505 (emphasis added).




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supra at 523. Appellant’s first claim presents no statutory exception to the

PCRA time-bar and would not merit relief.

       In his second claim, Appellant argues, in effect, that Hopkins applies

retroactively.     (See Appellant’s Brief, at 9-15).     We disagree.     See

Washington, supra at *16.5

       Appellant has failed to plead and prove a statutory exception to the

PCRA time-bar. The PCRA court properly dismissed his petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




____________________________________________


5
  “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.” Miller, supra at 995 (citations omitted). See also
Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. 2015)
(recognizing that under Miller this Court has declined to construe Alleyne
as applying retroactively to cases during PCRA review).




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