J. S64005/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                       v.                    :
                                             :
DAVID ORTIZ-LOPEZ,                           :           No. 797 MDA 2015
                                             :
                            Appellant        :


                      Appeal from the PCRA Order, May 4, 2015,
                    in the Court of Common Pleas of Berks County
                   Criminal Division at No. CP-06-CR-0001284-2011


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED DECEMBER 01, 2015

      David Ortiz-Lopez appeals pro se from the order filed in the Court of

Common Pleas of Berks County which dismissed, without a hearing, his

petition   filed    pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.

      On August 3, 2010, appellant sold two packets of cocaine to an

undercover police officer for $20. On August 5, 2010, appellant again sold

two packets of cocaine to an undercover police officer for $20. Both of these

transactions occurred within 1,000 feet of the 10th & Penn Elementary School

in Reading, Pennsylvania.

      On April 8, 2011, appellant was charged with various violations of the

Controlled Substance, Drug, Device and Cosmetic Act, including: two counts

each of delivery of a controlled substance -- cocaine; possession with the


* Former Justice specially assigned to the Superior Court.
J. S64005/15


intent to distribute a controlled substance -- cocaine; and possession of a

controlled substance -- cocaine.1      On April 27, 2011, the Commonwealth

filed its notice requesting a two-year mandatory minimum sentence

pursuant to 18 Pa.C.S.A. § 6317 because the offense occurred in a drug free

school zone. (Docket #8).2

        On November 29, 2011, appellant entered a guilty plea to the two

counts of delivery of a controlled substance -- cocaine, and he was

sentenced to 3 to 7 years of incarceration.        No post-sentence motions or

direct appeal were filed.

        On January 23, 2015, appellant filed a PCRA petition challenging the

validity of his sentence nunc pro tunc.          On March 9, 2015, appointed




1
    35 P.S. §§ 780-113(a)(30) and (16), respectively.
2
    18 Pa.C.S.A. § 6317(a) provides:

              General rule.--A person 18 years of age or older
              who is convicted in any court of this Commonwealth
              of a violation of section 13(a)(14) or (30) of . . . the
              Controlled Substance, Drug, Device and Cosmetic
              Act, shall, if the delivery or possession with intent to
              deliver of the controlled substance occurred within
              1,000 feet of the real property on which is located a
              public, private or parochial school or a college or
              university or within 250 feet of the real property on
              which is located a recreation center or playground or
              on a school bus, be sentenced to a minimum
              sentence of at least two years of total confinement
              ...


                                       -2-
J. S64005/15


counsel, J. Allen Daringer, Esq., filed a Turner/Finley3 “No Merit” letter and

a petition to withdraw. (Docket #22). On March 14, 2015, the PCRA court

granted Attorney Daringer’s request; and three days later, the PCRA court

issued its Pa.R.Crim.P. 907(1) notice of intent to dismiss the petition without

a hearing. (Docket #25). Although appellant filed a response to this notice,

the PCRA court determined that it lacked jurisdiction and dismissed the

petition on April 20, 2015.

        On appeal, appellant argues4 that his two-year mandatory minimum

sentence under § 6317(a) was unconstitutional under Alleyne v. United

States, 133 S.Ct. 2151 (2013). He requests that we remand his case for

resentencing. Before we may address the merits of appellant’s arguments,

we must first consider the timeliness of appellant’s PCRA petition because it

implicates     the   jurisdiction   of   this   court   and   the   PCRA    court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation

omitted).

        All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). The Pennsylvania Supreme Court has held

that the PCRA’s time restriction is constitutionally sound. Commonwealth



3
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Pennsylvania
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
4
    Appellant’s brief does not contain a statement of questions involved.


                                         -3-
J. S64005/15


v. Cruz, 852 A.2d 287 (Pa. 2004).                In addition, our supreme court has

instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition   is    untimely,       a    court   lacks   jurisdiction     over   the    petition.

Commonwealth v. Callahan, 101 A.3d 118 (Pa.Super. 2014) (courts do

not   have      jurisdiction    over     an   untimely     PCRA);    Commonwealth           v.

Wharton, 886 A.2d 1120 (Pa. 2005).

      In this case, appellant’s PCRA petition is facially untimely. Appellant

entered his guilty plea and was sentenced on November 29, 2011. Since no

appeal was filed, appellant’s sentence became final on December 29, 2011,

which was 30 days from the judgment of sentence. Appellant had one year

from this date, or until December 29, 2012, to file a PCRA petition.

Appellant filed his PCRA petition on January 23, 2015, which is more than

two years after the deadline imposed by the PCRA.

      There      are    three        narrow   exceptions    to   the    PCRA’s      timeliness

requirements which are set forth in 42 Pa.C.S.A. § 9545:

                (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:

                               (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


                                              -4-
J. S64005/15


                               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.

                 (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.

     The defendant has the burden of pleading and proving the applicability

of any exception. 42 Pa.C.S.A. § 9545(b)(1). “If the petition is determined

to be untimely, and no exception has been pled and proven, the petition

must be dismissed without a hearing because Pennsylvania courts are

without jurisdiction to consider the merits of the petition.” Commonwealth

v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

     Appellant does not appear to argue that he has met any of the

timeliness exceptions at 42 Pa.C.S.A. § 9545(b)(1). Instead, he argues that



                                     -5-
J. S64005/15


18 Pa.C.S.A. § 6317(a) is void ab initio, and that his sentence was,

therefore, illegal regardless of when he asked the PCRA court for relief. He

claims that this court conducted an independent analysis of mandatory

sentencing statutes in Commonwealth v. Mundy, 78 A.3d 661 (Pa.Super.

2013), and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014)

(en banc), and found them to be “null and void.”       Therefore, a sentence

that is void ab initio can be addressed at any time, in any form, and is

non-waivable.   He argues that because is sentence was void ab initio his

PCRA petition was timely filed. We disagree.

      In Mundy, we held that a challenge to the legality of a sentence may

be raised as a matter of right, is non-waivable, and may be entertained

so long as the reviewing court has jurisdiction. See also Commonwealth

v. Cardwell, 105 A.3d 748 (Pa.Super. 2014); Commonwealth v. Fennell,

105 A.3d 13 (Pa.Super. 2014) (a challenge to the legality of a sentence may

be entertained as long as the reviewing court has jurisdiction).           In

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999), our supreme

court held:    “[a]lthough 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 [jurisdictional] exceptions thereto.”   See also Commonwealth v.

Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (“although illegal sentencing

issues cannot be waived, they still must be presented in a timely PCRA

petition.”).



                                    -6-
J. S64005/15


      As appellant’s PCRA petition is clearly untimely and appellant has

failed to plead and prove the applicability of any exception to the PCRA’s

time-of-filing requirements, the PCRA court lacked jurisdiction to consider

the merits of appellant’s issues and did not err in dismissing appellant’s

petition without an evidentiary hearing.5

      Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 12/1/2015




5
  Even if appellant had invoked the newly recognized constitutional right
exception, his PCRA petition was untimely. This exception applies when a
new constitutional right is recognized which has been found to apply
retroactively.    We have recently held that Alleyne does not apply
retroactively to cases on collateral review. Commonwealth v. Riggle, 119
A.3d 1058 (Pa.Super. 2015); accord Commonwealth v. Miller, 102 A.3d
988, 995 (Pa.Super. 2014) (Alleyne did not trigger the newly-retroactive-
constitutional-right exception to the PCRA’s time bar); United States v.
Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (“[W]e now hold that
Alleyne cannot be applied retroactively to cases on collateral review.”).
Alleyne is retroactive only to cases that were still on direct review when it
was decided on June 23, 2013. Here, appellant’s case was at the collateral
stage when Alleyne was decided on June 23, 2013. Because appellant's
case was no longer on direct review when Alleyne was decided, the
timeliness exception at 42 Pa.C.S.A. § 9545 (b)(1)(iii) would not apply.


                                    -7-
