J-S22005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LUIS MANUEL OCASIO-SANTANA,

                            Appellant               No. 1114 MDA 2016


                   Appeal from the PCRA Order May 24, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004407-2008


BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 11, 2017

       Appellant, Luis Manuel Ocasio-Santana, appeals pro se from the order

denying his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       A prior panel of this Court addressed Appellant’s appeal from the

denial of his first PCRA petition, and it provided the following factual

background:

             On August 6, 2008, Appellant stabbed his girlfriend
       multiple times in the face, chest, and abdomen. The victim’s
       daughter was also wounded as she attempted to protect her
       mother from Appellant. On March 24, 2009, Appellant entered
       into a negotiated guilty plea agreement to the charges of
       criminal attempt (criminal homicide), aggravated assault, and
       simple assault.1 The trial court imposed the negotiated sentence
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     of 12 to 24 years’ incarceration. Appellant did not file post-
     sentence motions or a direct appeal.
           1
             18 Pa.C.S. §§ 901(a), 2702(a)(1) and 2701(a)(1),
           respectively.

            On March 19, 2010, Appellant filed a timely pro se PCRA
     petition alleging claims of ineffective assistance of trial counsel.
     PCRA counsel was appointed to assist Appellant with his
     amended PCRA petition. On February 9, 2011, an evidentiary
     hearing was held on Appellant’s amended PCRA petition. On
     March 23, 2011, the trial court entered an order denying
     Appellant’s request for PCRA relief.

Commonwealth v. Ocasio-Santana, 602 MDA 2011, 40 A.3d 203 (Pa.

Super. filed December 27, 2011) (unpublished memorandum).           This Court

affirmed the denial of PCRA relief, id., and the Supreme Court denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Ocasio-

Santana, 47 A.3d 846, 33 MAL 2012 (Pa. filed June 13, 2012).

     On March 21, 2016, Appellant filed his second PCRA petition. On April

29, 2016, the PCRA court provided notice of its intent to dismiss Appellant’s

petition pursuant to Pa.R.Crim.P. 907 on the basis that it was untimely. On

May 24, 2016, the PCRA court dismissed Appellant’s petition.       This timely

appeal followed.

     On appeal, Appellant presents the following issue for this Court’s

consideration:

     Whether the Lower Court erred in finding [Appellant’s] PCRA
     [petition] as untimely where the United States Supreme Court in




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       Montgomery v. Louisiana[1] held that any cases out of their
       Court that were substantive in nature were retroactively
       applicable to all the States and in doing so caused Alleyne v.
       U.S.[2] to become retroactively applicable to the [Appellant].

Appellant’s Brief at vii.

       Our standard of review of an order 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.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                          “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

       Initially, we address whether Appellant’s petition is properly before us.

Any PCRA 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).      This time requirement is mandatory and jurisdictional in

nature, and a court may not ignore it in order to reach the merits of the

petition.    Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa.

Super. 2013) (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.

2000)). “A judgment [of sentence] becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United
____________________________________________


1
    Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718 (2016).
2
    Alleyne v. U.S., ___U.S.___, 133 S.Ct. 2151, 2163 (2013).



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States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       In the case at bar, Appellant pled guilty and was sentenced on

March 24, 2009.       Appellant did not file post-sentence motions or a direct

appeal.     Therefore, Appellant’s judgment of sentence became final thirty

days later on April 23, 2009.           Pa.R.A.P. 903; 42 Pa.C.S. § 9545(b)(3).

Accordingly, Appellant had until April 23, 2010, to file a timely PCRA petition.

42 Pa.C.S. § 9545(b)(1). Appellant did not file the PCRA petition underlying

this appeal until March 21, 2016, rendering this PCRA petition patently

untimely.

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.3 A petition invoking one of these exceptions must be filed

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3
    The exceptions to the timeliness requirement are:

       (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
(Footnote Continued Next Page)


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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).

      Here, Appellant claims that his sentence was illegal in light of the

holdings from Alleyne and Montgomery.                 After review, we conclude that

Appellant’s argument is meritless.

      In Alleyne, the United States Supreme Court held that any facts that

increase a mandatory minimum sentence must be submitted to the jury and

found beyond a reasonable doubt.                 Alleyne, 133 S.Ct. at 2155, 2163.

However, the Pennsylvania Supreme Court held that Alleyne does not apply

retroactively to collateral attacks on a petitioner’s mandatory minimum

sentence. Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Additionally, Alleyne is also inapplicable because Appellant was not

sentenced to a mandatory minimum term of incarceration.



                       _______________________
(Footnote Continued)

      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), (ii), and (iii).



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       Moreover, while Montgomery v. Louisiana, 136 S.Ct. 718 (2016),

states that Miller v. Alabama, 132 S.Ct. 2455 (2012),4 applies retroactively

to cases on collateral review, Appellant was not sentenced to a mandatory

term of life without the possibility of parole. Furthermore, Appellant was not

a juvenile at the time he committed his crimes.     Thus, we agree with the

PCRA court that Appellant’s second PCRA petition was untimely, and

Appellant failed to overcome the PCRA’s jurisdictional time bar.

       For the reasons set forth above, we conclude that Appellant is entitled

to no relief.    Accordingly we affirm the order denying Appellant’s second

PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2017




____________________________________________


4
   In Miller, the United States Supreme Court held that it is unconstitutional
to impose a mandatory sentence of life imprisonment without the possibility
of parole on juvenile offenders. Miller, 132 S.Ct. at 2475.



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