J-S18024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

EMILIO R. RIVERA

                            Appellant                       No. 1088 MDA 2015


                   Appeal from the Order Entered June 4, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001857-2009


BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                  FILED APRIL 15, 2016

        Emilio R. Rivera appeals from the trial court’s order dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        In November 2011, Rivera entered a negotiated guilty plea on two

separate informations, 1366-2009 and 1857-2009.                  On information 1366-

2009, Rivera pled guilty to possession with intent to deliver (crack cocaine),

receiving stolen property, and various firearm offenses.               On information

1857-2009, Rivera pled guilty to four counts of delivery of cocaine,

conspiracy     to   commit     delivery    of   cocaine,   and    criminal   use   of   a

communication facility.       On November 10, 2011, the trial court sentenced

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*
    Retired Senior Judge assigned to the Superior Court.
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Rivera to an aggregate term of 9 to 18 years’ imprisonment.                 Rivera’s

sentence included imposition of the Drug-Free School Zone mandatory

minimum statute, 18 Pa.C.S. § 6317.               No post-sentence motions or direct

appeal were filed.

       On January 7, 2015, Rivera filed the instant pro se PCRA petition.

Counsel was appointed to represent him and to file an amended petition, if

appropriate. Counsel subsequently filed a Finley1 letter seeking to withdraw

from representing Rivera at the post-conviction phase.            The court granted

counsel’s request to withdraw and, on April 28, 2015, issued its Pa.R.Crim.P.

907 notice of intent to dismiss Rivera’s petition. On May 22, 2015, Rivera

filed a pro se amended PCRA petition raising the issue of the legality of his

mandatory minimum sentence under the dictates of Alleyne v. United

States, 133 S. Ct. 2151 (2013).                On June 4, 2015, the court dismissed

Rivera’s petition, determining that his petition was facially untimely and that

he failed to plead and prove any of the timeliness exceptions enumerated

under the PCRA. See 42 Pa.C.S. § 9545(b)(1)(i), (ii), & (iii). This timely

pro se appeal follows.

       On appeal, Rivera presents the following issues for our consideration:



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1
 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).                    See also
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).




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         (1)   Did the PCRA court err in not granting Appellant
               permission to withdraw [his] guilty plea when the guilty
               plea was not intelligent and knowing?

         (2)   Did the PCRA court err in not holding an evidentiary
               hearing to address an issue of ineffective assistance of
               counsel?

         The standard of review of an order denying a PCRA petition is whether

that determination 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.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).

         Before we address the merits of Rivera’s claims on appeal, we must

determine whether his PCRA was timely filed. Generally, a petition for PCRA

relief, including a second or subsequent petition, must be filed within one

year of the date the judgment is final. See 42 Pa.C.S. § 9545(b)(3); see

also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). There

are, however, exceptions to the time requirement, set forth at 42 Pa.C.S. §

9545(b).       Where the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met, the petition will be

considered      timely.   Id.    These   exceptions   include   interference   by

government officials in the presentation of the claim, after-discovered facts

or evidence, and an after-recognized constitutional right.        42 Pa.C.S. §

9545(b)(1)(i)-(iii). A PCRA petition invoking one of these exceptions must

“be filed within 60 days of the date the claims could have been presented.”

Id. at (b)(2). The timeliness requirements of the PCRA are jurisdictional in


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nature and, accordingly, a PCRA court cannot hear untimely petitions.

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003).

      Rivera’s judgment of sentence became final for purposes of the PCRA

on December 10, 2012, after the time expired for him to file a direct appeal

from his judgment of sentence.      See Pa.R.A.P. 903(a).      Therefore, Rivera

had until December 10, 2013 to file his petition. However, Rivera did not file

his pro se PCRA petition until January 7, 2015.     Rivera’s petition, therefore,

is facially untimely.   Accordingly, we must now determine whether Rivera

has pled and proven an exception to the PCRA time bar.

      Instantly, Rivera does not allege any section 9545(b)(1) exception.

Rather, he first claims that he is entitled to PCRA relief because he entered

an involuntary guilty plea where he was “neglect[ed of being] inform[ed] of

the change in the permissible range of sentencing precipitated by the ‘School

Enhancement.’” Appellant’s Brief, at 3. Specifically, Rivera asserts that the

government breached his plea agreement by not making him aware as to

what effect the enhancement would have on his overall sentence.           Again,

because Rivera fails to plead or prove any exception to the timeliness

provisions of the PCRA, he is not entitled to relief on this claim.

      Next, Rivera asserts his sentence is illegal based upon the holding of

the United States Supreme Court decision in Alleyne, supra. In Alleyne,

the Supreme Court held that “facts that increase mandatory minimum

sentences must be submitted to the jury” and must be found beyond a

reasonable doubt. Alleyne, 133 S.Ct. at 2163. A challenge to a sentence

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premised      upon    Alleyne        implicates      the    legality   of   the   sentence.

Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc).

Moreover, while 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 42 Pa.C.S. § 9543(a)(2)(vii).

       Despite the fact that section 6317 has been declared unconstitutional,2

Rivera   is   not    entitled   to    relief    in   his   untimely    PCRA   petition.   In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), the defendant

also filed an untimely PCRA petition raising the claim that his mandatory

minimum sentence was illegal. To overcome the untimeliness of his petition,

the defendant unsuccessfully argued that Alleyne announced a new

constitutional right under the PCRA that applies retroactively. Additionally,

the Court found meritless the defendant’s allegation that his illegal sentence

claim was not waivable on appeal where “in order for th[e] Court to review a

legality of sentence claim, there must be a basis for [its] jurisdiction.” Id. at




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2
  In Commonwealth v. Bizzel, 107 A.3d 102 (Pa. Super. 2014) (en banc),
our Court relied on the dictates of Alleyne and found that the improper
sentencing practice under section 6317(b) was not severable from the
remainder of the statutory provisions. Thus, our Court deemed the statute
unconstitutional. In Bizzel, the defendant had been convicted of various
drug offenses and criminal conspiracy; Bizzel was sentenced pursuant to the
mandatory minimum. On direct appeal, our Court affirmed defendant’s
convictions, but held that Bizzel’s judgment of sentence based on section
6317 was unconstitutional and must be vacated.



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995. Finally, the Court held that Alleyne is not to be applied retroactively

to cases in which the judgment of sentence had become final. Id.

       Similar to the defendant in Miller, Rivera raises a legality of sentence

claim predicated on the holding of Alleyne and an unconstitutional

mandatory minimum statute. Because Rivera’s petition is facially untimely,

because he does not allege and prove an exception to the timeliness

requirements of the PCRA, and because Alleyne does not apply retroactively

to cases on collateral review, Miller, supra,3 he is not entitled to relief.

       Finally, Rivera claims that plea counsel was ineffective for failing to

anticipate that section 6317 would ultimately be declared unconstitutional.

Because counsel’s ineffectiveness does not fit within a timeliness exception

under the PCRA, he is not entitled to relief.         See Commonwealth v.

Pursell, 749 A.2d 911 (Pa. 2000).

       Accordingly, the trial court properly concluded that Rivera’s PCRA

untimely petition should be dismissed. Johnston, supra.

       Order affirmed.




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3
   Although Alleyne was decided prior to Rivera’s judgment of sentence
becoming final, he is not entitled to relief because his case is not still
pending on direct review and, most importantly, his petition was untimely
filed, thus divesting the trial court of jurisdiction. Newman, supra; Miller,
supra.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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