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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ADRIAN QUINTANA, JR.

                            Appellant                 No. 3681 EDA 2015


               Appeal from the PCRA Order November 13, 2015
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0003664-2009


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.                              FILED OCTOBER 19, 2016

        Adrian Quintana, Jr., appeals pro se from the order entered November

13, 2015, in the Court of Common Pleas of Northumberland County, denying

him relief on his second petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq.          The PCRA court determined the

petition was untimely and Quintana did not attempt to plead or prove any of

the statutory timeliness exceptions. Quintana claims that trial court imposed

an illegal sentence.        After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.

        As background, we quote from the PCRA court’s Pa.R.A.P. 1925(a)

opinion, authored by the Honorable James T. Anthony:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Following a jury trial from March 9 to March 10, 2010,
       [Quintana] was found guilty of two counts of Possession with
       Intent to Deliver a Controlled Substance (Heroin and Cocaine),
       two counts of Possession of a Controlled Substance (Heroin and
       Cocaine) and related offenses. On April 9, 2010, I sentenced
       [Quintana] to an aggregate term of 9½ to 19 years
       imprisonment in a State Correctional Institution. [Quintana]
       filed a direct appeal, and on April 5, 2011, the Superior Court
       affirmed [Quintana’s] sentence. [1] [Quintana] did not file a
       Petition for Allowance of Appeal in the Supreme Court.

       On June 6, 2012, [Quintana] filed his first Post Conviction
       Collateral Relief (PCRA) petition, and counsel was appointed.
       Ultimately, on September 19, 2012, I denied [Quintana’s]
       petition without a hearing as being untimely filed. [Quintana]
       timely appealed.     On August 19, 2013, the Superior Court
       affirmed my order, and on February 28, 2014, the Supreme
       Court denied a petition for allowance of appeal.[2] On April 28,
       2015, [Quintana] filed a second PCRA petition, which is the
       subject of this appeal. On September 11, 2015, I issued a notice
       to [Quintana] of my intent to dismiss the petition without a
       hearing as being untimely filed. The order also indicated my
       reasons for the denial, namely that [Quintana] did not meet the
       requirements for any of the exceptions to the PCRA’s time limits.
       [Quintana] did not file a response to my notice, and on
       November 13, 2015, I dismissed [Quintana’s] petition. This
       appeal followed.

Trial Court Opinion, 2/5/2016, at 1-2 (footnote omitted).

       “[A]s a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

____________________________________________


1
  See Commonwealth v. Quintana, 29 A.3d 824 (Pa. Super. 2011)
(unpublished memorandum).
2
  See Commonwealth v. Quintana, 83 A.3d 1067 (Pa. Super. 2013)
(unpublished memorandum), PAA denied, 86 A.3d 233 (Pa. 2014).



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(Pa. Super. 2016) (citation omitted). However, before we can address the

merits, we must determine if the petition is timely.

      “[A] court may entertain a challenge to the legality of the
      sentence so long as the court has jurisdiction to hear the claim.
      In the PCRA context, jurisdiction is tied to the filing of a timely
      PCRA petition.” [Commonwealth v. Fowler, 930 A.2d 586] at
      592 (quoting Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.
      Super. 2005) (en banc ), appeal denied, 591 Pa. 688, 917 A.2d
      844 (2007)). “Although 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.” Fowler, supra.
      Pennsylvania law makes clear no court has jurisdiction to hear
      an untimely PCRA petition. Commonwealth v. Robinson, 575
      Pa. 500, 837 A.2d 1157 (2003). Thus, a collateral claim
      regarding the legality of a sentence can be lost for failure to
      raise it in a timely manner under the PCRA. Commonwealth v.
      Wojtaszek, 951 A.2d 1169, 1173 n. 9 (Pa. Super. 2008),
      appeal denied, 600 Pa. 733, 963 A.2d 470 (2009).

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013).

      Additionally,

      The PCRA requires that a PCRA petition, including a second or
      subsequent petition, shall be filed within one year of the date the
      underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1)…
      “The PCRA's timeliness requirements are jurisdictional in nature
      and must be strictly construed; courts may not address the
      merits of the issues raised in a petition if it is not timely filed.”
      Commonwealth v. Abu-Jamal, 596 Pa. 219, 227, 941 A.2d
      1263, 1267-68 (2008). There are three statutory exceptions to
      the timeliness provisions that allow for very limited
      circumstances under which the late filing of a PCRA petition will
      be permitted:

         (i) the failure to raise a 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 of the United States;




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        (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 [above] shall be
     filed within 60 days of the date the claim could have been
     presented.

     42 Pa.C.S.A. § 9545(b)(1), (2).

Commonwealth v. Chambers, 35 A.3d 34, 36-37 (Pa. Super. 2011).

     Finally, “[i]n 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 [her] claim was raised within the sixty-day time frame under

section 9545(b)(2).” Commonwealth v. Ward-Green, 141 A.3d 527, 532

(Pa. Super. 2016) (citation omitted).

     Here, Quintana’s judgment of sentence became final May 5, 2011,

thirty days after this Court affirmed his judgment of sentence and the time

for filing a petition for allowance of appeal with our Supreme Court expired.

See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a). Accordingly, Quintana had

until May 7, 2012 to file a PCRA petition, including a second or subsequent

petition. Quintana’s first PCRA petition was filed on June 6, 2012 and was

determined to be untimely by both the PCRA court and a panel of this Court.

This petition, Quintana’s second, was filed on April 28, 2015 and is clearly,

facially untimely. Quintana neither has pled nor proven his entitlement to



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any of the three timeliness exceptions provided by statute, despite having

been specifically informed of the untimely nature of his petition. Moreover,

Quintana must have been aware of the consequences of a failure to plead or

prove a timeliness exception given the disposition of his first PCRA petition,

in that this Court previously held: “Further, Quintana has not explicitly pled

or proven any of the exceptions to the PCRA’s timeliness exceptions.

Accordingly, the instant PCRA petition was properly dismissed as untimely.”

Quintana, 83 A.3d 1067 (Pa. Super. 2013) (unpublished memorandum at

4) (citations omitted).

      Nonetheless, we acknowledge that Quintana’s petition is a claim of

illegal sentence based on the United States Supreme Court decision,

Alleyne v. United States, 133 S.Ct. 2151 (2013). Alleyne was decided on

June 17, 2013. However, Quintana’s previous appeal was still pending at

that time. Accordingly, he had sixty day from the resolution of his pending

appeal to file a claim based on Alleyne.       See 42 Pa.C.S. 9545(b)(1)(iii),

(2); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (Subsequent PCRA

petition must be filed within 60 days of date of order resolving pending

appeal). As noted above, Quintana’s prior appeal terminated by order of our

Supreme Court on February 28, 2014. Therefore, Quintana had until April

29, 2014 to file this claim. He did not file this petition until April 28, 2015 –

twelve months too late. Further, the holding of Alleyne is not entitled to

retroactive application.   See Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016) (no retroactive application of Alleyne on collateral appeal);

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Thomas v. Reyes, 755 F.3d 710 (3d Cir. 2014) (no retroactive application

of Alleyne).

     Based on the above, the PCRA court committed no abuse of discretion

or error of law in denying Quintana’s PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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