J-S09044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

JESUS M. GARCIA

                            Appellant                        No. 1562 MDA 2015


                  Appeal from the PCRA Order August 25, 2015
                In the Court of Common Pleas of Lebanon County
               Criminal Division at No(s): CP-38-CR-0000829-2008


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                               FILED JANUARY 29, 2016

        Appellant Jesus M. Garcia appeals from the order of the Lebanon

County Court of Common Pleas dismissing as untimely his “motion for

extraordinary relief to challenge the legality of the sentence,” which the trial

court treated as a petition for relief pursuant to the Post-Conviction Relief

Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        On November 6, 2008, a jury found Appellant guilty of four counts of

delivery of a controlled substance,1 two counts of criminal conspiracy to

deliver    a   controlled    substance,2       one   count   of   criminal   use   of   a


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1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 903(a)(1), (a)(2).
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communication facility,3 one count of corrupt organizations,4 and one count

of conspiracy to commit corrupt organization.5      On January 28, 2009, the

trial court sentenced Appellant to an aggregate sentence of 25 to 52 years’

imprisonment. This Court affirmed Appellant’s conviction but remanded the

case to the trial court for re-sentencing. Commonwealth v. Garcia, No.

437 MDA 2009, at 22-25 (Pa.Super. filed Dec. 24, 2009) (unpublished

opinion).    We found the trial court imposed a maximum sentence that

exceeded the statutory maximum on two counts. Id. On May 5, 2010, the

trial court re-sentenced Appellant to 25 to 40 years’ imprisonment. On May

9, 2011, this Court affirmed the judgment of sentence. On April 10, 2012,

the Supreme Court of Pennsylvania denied Appellant’s petition for allowance

of appeal.

        On April 30, 2012, Appellant filed a PCRA petition, which was amended

on September 12, 2012. The PCRA court conducted a hearing and, on March

13, 2013, denied Appellant’s PCRA petition. This Court affirmed that denial

and the Supreme Court denied Appellant’s petition for allowance of appeal.

        On July 10, 2015, Appellant filed a “motion for extraordinary relief to

challenge the legality of the sentence, to be unconstitutional pursuant to 42


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3
    18 Pa.C.S. § 7512(a).
4
    18 Pa.C.S. § 911(b)(3).
5
    18 Pa.C.S. § 911(b)(4).



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Pa.C.S.A. §5505 et seq.”         The trial court treated this motion as a second

PCRA petition6 and, on April 25, 2015, denied the petition as untimely.

Appellant filed a timely notice of appeal. Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.7

       Appellant raises the following issues on appeal:

          [1.] Did the Lower Court Err in dismissing Appellant’s
          Motion for Extraordinary Relief to Challenge the Legality of
          the Sentence, to be Unconstitutional Pursuant to 42
          Pa.C.S.A. §5505, et seq. In violation of the 6th and 14th
          Amendments       do    to   the     mandatory     minimum
          sentence/provisions/statute that were applied were
          rendered unconstitutional.
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6
  The PCRA court properly treated Appellant’s motion for extraordinary relief
as his second PCRA petition. The PCRA provides: “The action established in
this subchapter shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas
corpus and coram nobis.” 42 Pa.C.S. § 9542. If the petitioner’s claim is
cognizable under the PCRA, a petitioner “may only obtain relief under the
PCRA.”      Commonwealth v. Descardes, 101 A.3d 105, 108
(Pa.Super.2014) (quoting Commonwealth v. Pagan, 864 A.2d 1231, 1233
(Pa.Super.2004)) (emphasis deleted).          Claims challenging a petitioner’s
sentence are cognizable on PCRA. See, e.g., Commonwealth v. Infante,
63 A.3d 358, 365 (Pa.Super.2013) (PCRA provides sole means for collateral
review of judgment of sentence); Commonwealth v. Fowler, 930 A.2d
586, 592 (Pa.Super.2007) (challenge to legality of sentence tied to filing of
timely PCRA petition); Commonwealth v. Guthrie, 749 A.2d 502, 503
(Pa.Super.2000) (PCRA is only vehicle to address legality of sentence after
direct appeal, or after time for filing direct appeal expires). Accordingly, the
PCRA court properly treated Appellant’s motion for extraordinary relief as a
second PCRA petition.
7
 On October 1, 2015, the trial court issued an order adopting its August 25,
2015 opinion as its Rule 1925(a) opinion.




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         [2.] Did the Lower Court Err in dismissing the Motion for
         Extraordinary Relief to Challenge the Legality of the
         Sentence of 25 years to 40 years, imposing three
         consecutive mandatory minimum sentences.

Appellant’s Brief at 3 (verbatim).

      Before we address the merits of Appellant’s PCRA petition, we must

first determine whether the petition is timely.      The PCRA provides that a

petition, “including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1);

accord     Commonwealth          v.   Monaco,      996     A.2d    1076,        1079

(Pa.Super.2010).    A judgment is final “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.” 42 Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. Monaco, 996 A.2d at 1079; 42 Pa.C.S. § 9545(b)(1).                The

late filing of a petition will be excused if a petitioner alleges and proves:

            (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

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            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. § 9545(b)(1)(i)-(iii).     When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant’s judgment of conviction became final on July 9, 2012, when

the time to file a petition for a writ of certiorari with the Supreme Court of

the United States expired. Commonwealth v. Wilson, 911 A.2d 942, 745

(Pa.Super.2006); 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13.1 (allowing

90 days for the filing of writ of certiorari in the Supreme Court of the United

States).   He had one year from that date, until July 9, 2013, to file a timely

PCRA petition.       Therefore, his current petition, filed on July 10, 2015, is

facially untimely.

      Appellant relies on Alleyne v. United States, --- U.S. ---, 133 S.Ct.

2151, 2158, 186 L.Ed.2d 314 (2013), to allege he qualifies for the new-

constitutional-right exception to the PCRA time-bar.         We disagree.    In

Alleyne, the Supreme Court of the United States found “[f]acts that

increase the mandatory minimum sentence are . . . elements and must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, ---

U.S. ---, 133 S.Ct. at 2158.      This was an extension of the Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), line of

Supreme Court of United States cases.          Commonwealth v. Miller, 102

A.3d 988, 994 (Pa.Super.2014).


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       In Miller, this Court found that, even if Alleyne announced 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.”         102 A.3d at 995.8

Because the Supreme Court of Pennsylvania and the Supreme Court of the

United States have not held that Alleyne applies to cases on collateral

review, Appellant cannot satisfy the new-constitutional-right exception to the

PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(iii); Miller, 102 A.3d at 995.

Further, the Supreme Court of the United States decided Alleyne on June

17, 2013.     Appellant did not file his current petition until November 12,

2014, which is more than 60 days after June 17, 2013, the date he could

have discovered the claim.          See 42 Pa.C.S. § 9545(b)(2) (“Any petition

invoking an exception provided in paragraph (1) shall be filed within 60 days

of the date the claim could have been presented.”); Commonwealth v.

Boyd, 923 A.2d 513, 517 (Pa.Super.2007) (“[w]ith regard to an after-


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8
  Appellant relies on Commonwealth v. Hopkins, 117 A.3d 247 (Pa.2015).
Appellant’s Brief at 8-12. Hopkins, however, is inapplicable. In Hopkins,
the Supreme Court of Pennsylvania found the mandatory minimum sentence
contained in 18 Pa.C.S. § 6317(a) was unconstitutional pursuant to Alleyne
and remanded the case, which was on direct appeal, for re-sentencing.
Hopkins, 117 A.3d at 249. Hopkins did not address whether Alleyne
applied retroactively to cases on collateral review. Unlike the appellant in
Hopkins, Appellant has completed his direct appeal and is seeking to apply
Alleyne on collateral review.




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recognized constitutional right, . . . the sixty-day period begins to run upon

the date of the underlying judicial decision”).9

       Accordingly, Appellant’s PCRA petition, captioned as a motion for

extraordinary relief, is time-barred and he fails to establish any exception to

the PCRA time-bar.          The PCRA court did not abuse its discretion in

dismissing the petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




____________________________________________


9
  To the extent Appellant argues his legality of sentence claim cannot be
waived, this argument fails. Although a challenge to the 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 exceptions thereto.” See Infante, 63
A.3d at 365. If a PCRA petition is untimely, the court lacks the jurisdiction
to hear any claim, including a legality of sentence challenge. Id.



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