J-S06021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VICTOR MALDONADO-RIVERA

                            Appellant               No. 960 MDA 2015


                   Appeal from the PCRA Order May 14, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000088-2006


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.:                        FILED FEBRUARY 12, 2016

        Appellant, Victor Maldonado-Rivera, appeals pro se from the May 14,

2015 order dismissing his second Post Conviction Relief Act1 (PCRA) petition

as untimely. After careful review, we affirm.

        We summarize the procedural history of this case as follows. On May

25, 2006, Appellant entered an open plea of guilty to two counts of

involuntary deviate sexual intercourse, one count of aggravated indecent

assault, and one count of indecent assault.2 On October 4, 2006, Appellant

was sentenced to an aggregate term of incarceration of 14½ to 29 years,

followed by five years of probation. Appellant filed a timely direct appeal,
____________________________________________
1
    42 Pa.C.S.A. §§ 9541-9546.
2
   18 Pa.C.S.A §§ 3123(a)(6), 3123(b), 3125(a)(7), and 3126(a)(7),
respectively.


*Former Justice specially assigned to the Superior Court.
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wherein he argued the ineffectiveness of his plea counsel for failing to insure

the full participation of a certified interpreter, failing to challenge Appellant’s

competency to enter a plea, and failing to present a mitigating witness at

sentencing.3 Appellant also challenged the voluntariness of his guilty plea.

This Court affirmed the judgment of sentence on March 11, 2009, and our

Supreme Court denied Appellant’s petition for allowance of appeal on August

26, 2009.      Commonwealth v. Maldonaldo-Rivera, 972 A.2d 557 (Pa.

Super. 2009) (unpublished memorandum), appeal denied, 983 A.2d 727

(Pa. 2009).

       On December 11, 2011, Appellant filed a pro se “Writ of Habeas

Corpus Ad Subjiciendum” seeking habeas corpus relief based on the

purported denial of counsel during his preliminary arraignment.          The trial

court denied relief and Appellant appealed.       On June 12, 2012, this Court

noted Appellant’s petition should have been treated as a PCRA petition,

vacated the trial court’s dismissal order, and remanded for appointment of

counsel and further proceedings. Commonwealth v. Maldonaldo-Rivera,

53 A.3d 929 (Pa. Super. 2012) (unpublished memorandum).                 The PCRA

court appointed counsel, who filed a motion to withdraw together with a


____________________________________________
3
  Appellant’s ineffective assistance of counsel issues were reviewable on
direct appeal at the time, pursuant to Commonwealth v. Bomar, 826 A.2d
831 (Pa. 2003), since limited by the decision in Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013).



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Turner/Finley4 letter. Subsequently, the PCRA court dismissed Appellant’s

petition as untimely and not subject to any of the limited exceptions to the

PCRA’s timeliness requirements and granted counsel’s motion to withdraw.

Appellant appealed pro se, and on August 19, 2014, this Court affirmed.

Commonwealth v. Maldonaldo-Rivera, 106 A.3d 166 (Pa. Super. 2014)

(unpublished memorandum).

       On April 13, 2015, Appellant filed the instant pro se PCRA petition. On

April 20, 2015, the PCRA court, in accordance with Pennsylvania Rule of

Criminal Procedure 907, filed its notice of intent to dismiss Appellant’s PCRA

petition as untimely. Appellant filed a pro se response on May 1, 2015. On

May 14, 2015, the PCRA court dismissed Appellant’s petition. Appellant filed

a timely notice of appeal on June 1, 2015.5

       On appeal, Appellant raises the following issues.

              1.    The [t]rial [c]ourt erred in overlooking the
              PCRA Exception under [4]2 Pa.C.S.A. §9545(b)(1)(i),
              (ii) and (iii), where a valid exception applied to
              [Appellant], where the [PCRA] court acknowledged
              [Appellant’s] inability to comprehend and understand
              even the basic English language, more the less
              Criminal Law.

              2.     The [t]rial [c]ourt failed to apply the
              exceptions at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii) and
              (iii), namely section (i) : The failure to raise the
____________________________________________
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.


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            claim previously the result of interference by
            government [sic] 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, where the Department of
            Corrections hindered [Appellant’s] ability to access
            the courts and to inform [Appellant] of court rulings
            affecting [Appellant’s] sentence.

            3.      The [t]rial [c]ourt failed to apply the
            exceptions at 42 Pa.C.S.A. § 9545 (b)(1)(i), (ii) and
            (iii), namely section (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, as [Appellant] is incarcerated and
            without the access of criminal court decisions which
            have     affected   this   [Appellant’s]  illegal and
            unconstitutionally imposed mandatory enhanced
            consecutive sentence pursuant to § 9718.

            4.     The [PCRA] Court abused its discretion to
            retain jurisdiction of a federal court ruling affecting
            the     legality   of    [Appellant’s]    illegal  and
            unconstitutitionally [sic] imposed sentence in
            violation of [Appellant’s] contractual plea agreement,
            where [Appellant’s] plea could not have been
            knowingly, intelligently and voluntarily entered, and
            should have been corrected.

            5.    The [PCRA] Court abused its discretion by
            denying PCRA Counsel and in not affording
            [Appellant] the exception available to a state court
            to grant retroactive effect to a United States
            Supreme Court constitutional ruling, pursuant to
            Danfor[th] v. Minnesota, 522 U.S. 264 (2008),
            considering the excessive Mandatory Sentence
            imposed illegally.

            6.    The Superior Court of Pennsylvania has the
            right to review and to reverse/remand an issue of
            the legality of a sentence sua sponte as the legality
            of a sentence can never be waived.

Appellant’s Brief at 4-5.

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        We note the following principles guiding our review. “Our standard of

review of [an] order granting or denying relief under the PCRA requires us to

determine whether the decision of the PCRA court is supported by the

evidence of record and 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. Melendez-Negron, 123 A.3d 1087, 1090 (Pa.

Super. 2015) (citation omitted). The timeliness of Appellant’s petition is our

threshold issue “because the PCRA time limitations implicate our jurisdiction

and may not be altered or disregarded in order to address the merits of a

petition.”    Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super.

2015) (citations omitted). “Under the PCRA, any petition for post-conviction

relief… must be filed within one year of the date the judgment of sentence

becomes final, unless one of the exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies.”6 Id. “The period for filing a PCRA petition is

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6
    The statute sets forth those exceptions as follows.

              § 9545. Jurisdiction and proceedings

                                               …

              (b) Time for filing petition.—

                     (1) 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:

(Footnote Continued Next Page)

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not subject to the doctrine of equitable tolling; instead, the time for filing a

PCRA petition can be extended only if the PCRA permits it to be extended.”

Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014)

(internal quotation marks and citation omitted).

      Appellant’s judgment of sentence became final on November 24, 2009,

ninety days after our Supreme Court denied his petition for allowance of

appeal.   See 42 Pa.C.S.A. § 9545(b)(3).             Accordingly, Appellant had until

November 24, 2010, to file a timely PCRA petition unless he could plead and

prove the application of one of the listed exceptions. See id. § 9545(b)(1).
                       _______________________
(Footnote Continued)
                             (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 this section
                             and has been held by that court to apply
                             retroactively.

                                                 …

42 Pa.C.S.A. § 9545(b)(1).


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       Instantly, although Appellant attempts to invoke the applicability of all

three of the statutory exceptions, his fundamental underlying claim is that

he should be afforded relief based on retroactive application of the United

States Supreme Court’s June 17, 2013 decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013). Appellant’s Brief at 16.7

       This Court has recently held that while “Alleyne applies retroactively

on direct appeal, we have declined to construe that decision as applying

retroactively to cases during PCRA review.”            Commonwealth v. Riggle,

119 A.3d 1058, 1064-1065 (Pa. Super. 2015).                  Our Supreme Court has

clearly   held    “that    the   language      ‘has   been    held’   in   42   Pa.C.S.

§ 9545(b)(1)(iii) means that a retroactivity determination must exist at the

time that the petition is filed.”        Commonwealth v. Abdul-Salaam, 812

A.2d 497, 502 (Pa. 2002).            No such decision holding Alleyne to apply

retroactively for post-conviction collateral relief has been made. See Miller,

supra at 995 (noting it was fatal to Miller’s claimed Section 9545(b)(1)(iii)

exception that neither the United States nor the Pennsylvania Supreme

Courts have held that Alleyne applies retroactively to cases where the

judgment of sentence is final). Appellant points out that the United States
____________________________________________
7
  Appellant’s arguments asserting the governmental interference and newly
discovered fact exceptions of Section 9545(b)(1)(ii) are advanced in an
attempt to excuse his filing his PCRA petition more than 60 days after the
date of the decision in Alleyne.      Appellant’s Brief at 15-20; see 42
Pa.C.S.A. § 9545(b)(2). Because of our disposition, we need not reach
these claims.



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Supreme Court has held that its retroactivity jurisprudence as clarified in

Teague v. Lane, 489 U.S. 288 (1989), does not restrict the authority of

states to give broader effect than required by the Teague decision.

Appellant’s Brief at 23, citing Danforth v. Minnesota, 552 U.S. 264, 266

(2008). However, this Court lacks the judicial power to decide that question

for the purposes of the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii)

(allowing a time-bar exception for “a constitutional right that was recognized

by the Supreme Court of the United States or the Supreme Court of

Pennsylvania … and has been held by that court to apply retroactively”)

(emphasis added).8

       Based on the foregoing, we conclude Appellant has failed to plead and

prove the applicability of an exception to the timeliness requirements of the

PCRA, therefore, we agree with the PCRA court that his petition is untimely,

and that the PCRA court and this Court are without jurisdiction to address

Appellant’s substantive claims.          See Cristina, supra.   Accordingly, we

affirm the PCRA court’s May 14, 2015 order dismissing Appellant’s PCRA

petition.

       Order affirmed.


____________________________________________
8
  Additionally, this Court, after applying the Teague principles to Alleyne,
has opined, “the fundamental fairness of the trial or sentencing is not
seriously undermined, and Alleyne is not entitled to retroactive effect in [a]
PCRA setting.” Riggle, supra at 1067.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2016




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