J-S05024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

HECTOR J. LOPEZ

                            Appellant                No. 1077 MDA 2016


                  Appeal from the Order Dated May 26, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003429-2011


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

JUDGMENT ORDER BY PANELLA, J.                        FILED MARCH 02, 2017

        Appellant, Hector Lopez, appeals pro se from the order dismissing his

petition for writ of habeas corpus as an untimely petition pursuant to the

Post Conviction Relief Act (“PCRA”). Lopez argues that there can be no

timeliness requirement for a challenge to an illegal sentence. After careful

review, we agree with the PCRA court that it lacked jurisdiction to entertain

Lopez’s petition, and therefore affirm.

        On July 10, 2012, Lopez pled guilty to two counts each of possession

of heroin with the intent to deliver and conspiracy. On August 28, 2012, the

trial court imposed mandatory minimum sentences for the possession with

intent to deliver charges pursuant to 18 Pa.C.S.A. § 7508.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05024-17


      Lopez did not file a direct appeal, but on September 2, 2014, he filed a

PCRA petition. In it, he argued that his mandatory minimum sentences were

illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013). After the

PCRA court denied relief, this Court permitted Lopez to withdraw his appeal

pursuant to his pro se motion, wherein he agreed with appointed counsel

that his appeal had no meritorious issues. See Commonwealth v. Lopez,

No. 699 MDA 2015, at 3-4 (Pa. Super. filed 5/4/16) (unpublished

memorandum).

      Lopez filed the instant petition for writ of habeas corpus on May 18,

2016, arguing that his sentence was illegal pursuant to Alleyne. The PCRA

court treated the petition as a PCRA petition and dismissed it as untimely.

Lopez then filed this timely appeal.

      On appeal, Lopez contends that there can be no time limit imposed

upon a challenge to the legality of a sentence. Clearly, Lopez understood

that the PCRA had such a time limit, which is why he withdrew his PCRA

petition and filed the current petition as a petition for writ of habeas corpus.

      However, it is well settled that the PCRA subsumes the remedy of

habeas corpus with respect to remedies offered under the PCRA. See

Commonwealth v. West, 938 A.2d 1034, 1043-1045 (Pa. 2007). “PCRA

review is limited to defendants who claim that they were wrongfully

convicted and/or are serving an illegal sentence.” Commonwealth v.

Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010) (citation omitted). Thus,


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Lopez’s challenge to the legality of his sentence is cognizable under the

PCRA, and therefore cannot be the basis for relief in a petition for writ of

habeas corpus.

      Since the trial court properly treated Lopez’s petition as a PCRA

petition, the jurisdictional requirements of the PCRA applied. The timeliness

of a post-conviction petition is jurisdictional. See Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Lopez’s judgment of

sentence became final on September 27, 2012, when the time for filing a

direct appeal to this court ran out. See 42 Pa.C.S.A. § 9545(b)(3). As a

result, any PCRA petition filed by Lopez after September 27, 2013 is time-

barred, unless he pleads and proves an exception to the time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Lopez makes no attempt to plead an exception, as he contends that

the PCRA does not apply to this petition. Rather, he contends that there can

be no time-bar to a challenge to the legality of the sentence. This argument

has been repeatedly rejected by the courts of this Commonwealth. See,

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

Thus, the trial court properly dismissed Lopez’s petition as an untimely PCRA

petition.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2017




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