J-S47044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

ALFRED ALBERT RINALDI

                            Appellant                      No. 2080 MDA 2015


               Appeal from the PCRA Order November 10, 2015
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0001054-2001


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED JUNE 21, 2016

        Alfred Albert Rinaldi appeals, pro se, from the trial court’s order

dismissing his petition,1 filed pursuant to the Post Conviction Relief Act

(PCRA).2 We affirm.

        In September 2003, Rinaldi entered a guilty plea to third-degree

murder (F-1) and robbery (F-1).3               On September 25, 2003, Rinaldi was

sentenced, in accordance with a plea agreement, to 20-40 years in prison for

the murder charge and 10-20 years’ imprisonment for robbery, for an
____________________________________________


1
  On appeal from the denial of PCRA relief, we must determine whether the
PCRA court’s findings are supported by the record and whether the order is
otherwise free of legal error. Commonwealth v. Blackwell, 647 A.2d 915,
920 (Pa. Super. 1994).
2
    42 Pa.C.S. §§ 9541-9546.
3
    18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 3701(a)(1)(i).
J-S47044-16



aggregate sentence of 30-60 years’ imprisonment.        No direct appeal was

filed. On August 7, 2004, Rinaldi filed a pro se PCRA petition. PCRA counsel

was appointed and he filed an amended petition on Rinaldi’s behalf.

However, on September 13, 2005, Rinaldi appeared before the court to

voluntarily withdraw his PCRA petition. After holding a colloquy to determine

whether his withdrawal request was being made voluntarily and after

consultation with appointed counsel, the court permitted withdrawal and

dismissed the amended petition.       On October 8, 2015, Rinaldi filed the

instant PCRA petition pro se in which he claims, in relevant part, that:

      [H]is mandatory minimum sentence pursuant to 18 Pa.C.S.A. §
      1103 is unconstitutional in light of the Supreme Court of
      Pennsylvania’s decision in Commonwealth v. Hopkins, [117
      A.3d 247 (Pa. 2015)].

      The instant petition is filed within sixty (60) days of learning of
      the decision in Hopkins at S.C.I. Rockview Law Library on 09-
      27-LEXUSNEXUS, 2015, pursuant to the filing restraints of Newly
      Discovered Evidence outlined in Commonwealth v. Medina, 92
      A.3d 1210 (2014)[.]

      Petitioner   now      contends    that   his   sentence    is  now
      unconstitutional, illegal, and lacks statutory authorization due to
      the fact that “an unconstitutional statute is ineffective for any
      purpose [as] it’s [sic] unconstitutionality dates from the time of
      its enactment and not merely the date of the decision holding it
      so.”

Pro Se PCRA Petition, 10/8/15, at ¶¶ 3-5. On November 10, 2015, the trial

court dismissed Rinaldi’s petition, without a hearing, deeming it facially

untimely and one that did not meet an exception to the timeliness

requirements of the PCRA. This appeal follows.




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      On appeal, Rinaldi raises the following issue for our consideration: As

applied, is 42 Pa.C.S.A. § 9543 unconstitutional?

      Before we address the merits of Rinaldi’s claim on appeal, we must

determine whether his petition 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

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

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

      Instantly, Rinaldi filed his PCRA petition on October 8, 2015. Rinaldi’s

judgment of sentence became final, for purposes of the PCRA, on October

25, 2003, after the time expired for him to file a direct appeal. Therefore, in

order to be timely under the PCRA, Rinaldi would have had to have filed his

petition by October 25, 2004.        Accordingly, Rinaldi’s petition is facially

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J-S47044-16



untimely.     However, we must determine whether Rinaldi has pled and

proven an exception to the PCRA time bar.

       In his petition, Rinaldi claims that he filed his petition within 60 days of

learning about the Hopkins decision. Moreover, he alludes to the fact that

this knowledge constitutes “Newly Discovered Evidence.” In Hopkins, our

Supreme Court declared a mandatory minimum statute, 18 Pa.C.S. § 6317,4

unconstitutional in light of principles announced in Alleyne v. United

States, 133 S. Ct. 2151 (2013). 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. Id. at 2163. A

challenge to a sentence premised upon Alleyne implicates the legality of the

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

(en banc). 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).

       We conclude that Rinaldi is not entitled to relief. First, our courts have

consistently held that a judicial opinion does not qualify as a previously

unknown “fact” capable of triggering the newly-discovered fact exception

under the PCRA. Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 986

(Pa. 2011)). Additionally, in Commonwealth v. Miller, 102 A.3d 988 (Pa.

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4
  Section 6317 concerns drug-free school zones.         That statute, in no way,
applies to Rowe’s criminal case.



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Super. 2014), the defendant also filed an untimely PCRA petition raising the

claim that his mandatory minimum sentence was illegal.               The Court

reiterated that “in order for th[e] Court to review a legality of sentence

claim, there must be a basis for [its] jurisdiction.” Id. at 995. In affirming

the denial of PCRA relief, the Miller Court held that Alleyne is not to be

applied retroactively to cases in which the judgment of sentence had become

final. Id.

      Because Rinaldi’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, he is not entitled to relief.

      Even if we were to address Rinaldi’s petition on its merits, it would fail.

Rinaldi claims that he was sentenced under section 1103 of the Crimes Code

which is an unconstitutional mandatory minimum statute. He is mistaken.

Rinaldi was convicted of third-degree murder. Under the Crimes Code, “[a]

person who has been convicted of murder of the third degree . . . shall be

sentenced to a term which shall be fixed by the court at not more than 40

years.” See 18 Pa.C.S. § 1102(d). Despite his collateral claims, Rinaldi was

sentenced under section 1102, not section 1103.           Section 1102 is the

statutory maximum to which a person convicted of third-degree murder, like

Rinaldi, may be sentenced.       It is not a mandatory minimum sentence.

Accordingly, Rinaldi was not sentenced to a mandatory minimum sentence,

and, as a result, no Alleyne concerns are implicated.               See Rinaldi

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Guilty/Nolo    Contendere      Plea    Colloquy,   9/26/03,      at   1   (indicating   no

mandatory      minimum      penalty    imposed     on   either    murder     or   robbery

offenses); see also SCI Commitment Forms, 10/15/03 (same); Sentencing

Guideline Forms, 10/17/03, (same).5

       Having found that the trial court properly dismissed Rinaldi’s petition,

Blackwell, supra, we affirm.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




____________________________________________


5
  Although Rinaldi claims in his statement of questions presented that
section 9543 of the PCRA is illegal, he never raises this issue in his PCRA
petition or argues it in his appellate brief. Therefore it is waived. In any
event, because Rinaldi was not sentenced pursuant to a mandatory
minimum statute, he has no basis to challenge section 9543 on Alleyne
principles.



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