J-S28023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DAVID JOHN RIVERA                        :
                                          :
                    Appellant             :   No. 1244 MDA 2017


                 Appeal from the PCRA Order, July 21, 2017,
             in the Court of Common Pleas of Schuylkill County,
            Criminal Division at No(s): CP-54-CR-0002141-2014.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JULY 24, 2018

      David John Rivera appeals pro se from the order denying his first petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-9546. We affirm.

      In disposing of Rivera’s direct appeal, this Court summarized the
pertinent facts and procedural history as follows:

            [Rivera] was arrested in connection with the sexual
         assault of two young children (L.B. and N.B.) at locations
         where the children, their mother, and her then paramour
         ([Rivera]) lived in Schuylkill County.      Represented by
         counsel, [Rivera] proceeded to a jury trial on April 6, 2015.
         The evidence presented at trial demonstrated that [Rivera]
         assaulted the two children in various manners and on
         several different occasions at their residences in Mahanoy
         City, Minersville, and Pottsville.

            At the conclusion of all testimony, the jury convicted
         [Rivera] of [rape of a child, two counts of IDSI, and related
         charges], and on July 20, 2015, he proceeded to a
J-S28023-18


          sentencing hearing. [Rivera] was found to be a sexually
          violent predator, and he was sentenced to serve an
          aggregate term of twenty-two years to forty-four years in
          prison, to be followed by five years of probation.

Commonwealth v. Rivera, 151 A.3d 1149 (Pa. Super. 2016), unpublished

memorandum at 1-2.           Rivera filed a timely appeal, and we affirmed his

judgment of sentence. See id. Our Supreme Court denied Rivera’s petition

for allowance of appeal on November 29, 2016. Commonwealth v. Rivera,

162 A.3d 1114 (Pa. 2016).

       Rivera filed a pro se PCRA petition on April 12 2017, and the PCRA court

appointed counsel. PCRA counsel filed an amended petition on May 19, 2017,

in which Rivera raised multiple claims of ineffective assistance of trial counsel.

The PCRA court held an evidentiary hearing at which Rivera, his witnesses,

and trial counsel testified. By order entered July 21, 2017, the PCRA court

dismissed Rivera’s petition. Rivera filed this pro se appeal.1 Both Rivera and

the PCRA court have complied with Pa.R.A.P. 1925.

       Rivera raises the following issues in his brief:

          I.     Did [trial counsel] render ineffective assistance of
                 counsel when counsel failed to meet with [Rivera] and
                 allow him to actively participate in his defense?

          II.    Did [trial counsel] render ineffective assistance of
                 counsel when counsel failed to call [his aunt, E.R.P.],



____________________________________________


1The PCRA court held a Grazier hearing, and, on September 18, 2017, and
determined that Rivera voluntarily chose to proceed pro se.        See
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).


                                           -2-
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                 and [his mother, E.R.O,] as witnesses to testify on
                 behalf of the defense?

          III.   Did [trial counsel] render ineffective assistance of
                 counsel when counsel failed to have medical records
                 entered into evidence to establish that examination of
                 the [child victims] did not indicate injury?

          IV.    Did [trial counsel] render ineffective assistance of
                 counsel when counsel failed to cross-examine the
                 children’s mother, [N.O.] regarding her past and
                 present relationship with [Rivera] and whether or not
                 [Rivera] was unfaithful and abusive?

          V.     Did the [PCRA] court err in dismissing [Rivera’s]
                 [PCRA] petition when the sentence imposed upon
                 [Rivera] is unconstitutional, [and] therefore illegal
                 due to the statute found at 42 Pa.C.S.A. § 9718 being
                 rendered void ab initio by Commonwealth v. Wolfe,
                 140 A.3d 651 ([Pa.] 2016)?

          VI.    Did the [PCRA] court unreasonably apply the law to
                 [Rivera’s] case when the Teague v. Lane, 488 U.S.
                 288 (1989) non-retroactivity standard cannot be
                 applied to statutes that were deemed void ab initio?

Rivera’s Brief at 5 (excess capitalization and emphasis omitted).2

       Our scope and standard of review is well settled:

          In PCRA appeals, our scope of review is limited to the
          findings of the PCRA court and the evidence on the record
          of the PCRA court's hearing, viewed in the light most
          favorable to the prevailing party. Because most PCRA
          appeals involve questions of fact and law, we employ a
____________________________________________


2 Arguably, Rivera’s ineffective assistance of counsel claims are waived
because they were not raised in his Rule 1925(b) statement with the requisite
specificity. See generally Commonwealth v. Pukowsky, 147 A.3d 1229
(Pa. Super. 2016). However, because the specific claims were litigated during
the evidentiary hearing, and the PCRA court addressed them in its opinion
accompanying its order denying post-conviction relief, we will consider their
merits.


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         mixed standard of review. We defer to the PCRA court's
         factual findings and credibility determinations supported by
         the record. In contrast, we review the PCRA court's legal
         conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)

(citations omitted).

      Rivera’s first four issues raise claims of ineffective assistance of counsel.

To obtain relief under the PCRA premised on a claim that counsel was

ineffective, a petitioner must establish, by a preponderance of the evidence,

that counsel's ineffectiveness so undermined the truth-determining process

that no reliable adjudication of guilt or innocence could have taken place.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,

counsel’s performance is presumed to be constitutionally adequate, and

counsel will only be deemed ineffective upon a sufficient showing by the

petitioner.” Id. This requires the petitioner to demonstrate that: (1) the

underlying claim is of arguable merit; (2) counsel had no reasonable strategic

basis for his or her action or inaction; and (3) counsel’s act or omission

prejudiced the petitioner. Id. at 533.

      As to the first prong, “[a] claim has arguable merit where the factual

averments, if accurate, could establish cause for relief.” Commonwealth v.

Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (en banc). “Whether the facts

rise to the level of arguable merit is a legal determination.’”        Id. (citing

Commonwealth v. Saranchak, 866 A.2d 292, 304 n.14 (Pa. 2005).




                                      -4-
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       As to the second prong of this test, trial counsel's strategic decisions

cannot be the subject of a finding of ineffectiveness if the decision to follow a

particular course of action was reasonably based and was not the result of

sloth or ignorance of available alternatives. Commonwealth v. Collins, 545

A.2d 882, 886 (Pa. 1988).      Counsel's approach must be "so unreasonable

that no competent lawyer would have chosen it." Commonwealth v. Ervin,

766 A.2d 859, 862-63 (Pa. Super. 2000) (citation omitted).          A petitioner

asserting ineffectiveness based upon trial strategy must demonstrate that the

“alternatives not chosen offered a potential for success substantially greater

than the tactics utilized.” Commonwealth v. Clark, 626 A.2d 154, 157 (Pa.

1993). “We do not employ a hindsight analysis in comparing trial counsel’s

actions with other efforts he [or she] may have taken.” Stewart, 84 A.3d at

707. A PCRA petitioner is not entitled to post-conviction relief simply because

a chosen strategy was unsuccessful. Commonwealth v. Buksa, 655 A.2d

576, 582 (Pa. Super. 1995).

       As to the third prong of the test for ineffectiveness, “[p]rejudice is

established if there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different." Stewart, 84 A.3d at

707.    “A reasonable probability ‘is a probability sufficient to undermine

confidence in the outcome.’” Id. (quoting Commonwealth v. Rathfon, 899

A.2d 365, 370 (Pa. Super. 2006).




                                      -5-
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      Finally, when considering an ineffective assistance of counsel claim, the

PCRA court “is not required to analyze these [prongs] in any particular order

of priority; instead if a claim fails under any necessary [prong] of the

ineffectiveness   test,   the   court   may     proceed   to   that   [prong]   first.”

Commonwealth v. Tharp, 101 A.3d 736, 747 (Pa. 2014) (citations omitted).

In particular, when it is clear that the petitioner as failed to meet the prejudice

prong, the court may dispose of the claim on that basis alone, without a

determination     of   whether    the   first   two   prongs     have    been    met.

Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa. 1995).                    Counsel

cannot be deemed ineffective for failing to pursue a meritless claim.

Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).

      The PCRA court summarized the testimony presented on Rivera’s behalf

at the evidentiary hearing as follows:

            At the hearing on June 15, 2017, [Rivera] complained
         about his trial counsel’s alleged failure to meet with him
         prior to trial. At first, [Rivera] testified that he had not met
         with [trial counsel] at all prior to trial and that he had
         requested [trial counsel] to visit him in prison but [trial
         counsel] had not done so. Later, [Rivera] testified that [trial
         counsel] had met with him prior to trial and, on cross-
         examination, he stated that sometimes [trial counsel] met
         with him in prison with his investigator and at other times
         only [trial counsel’s] investigator met with [him].

             [Rivera] complained that he wanted [trial counsel] to call
         [his sister, E.R.,] as a witness at trial to testify that he and
         [N.O.] had argued. He also wanted [trial counsel] to call his
         aunt, [E.R.P.], as a witness to testify at trial that [N.O.] had
         threatened that she would make allegations against [Rivera]
         and put him in jail. [Rivera] also claimed that he wanted
         [trial counsel] to call his brother as a witness at trial and to


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       call character witnesses whom [Rivera] did not identify.
       [Rivera] did not specify the nature of the allegations he
       claimed [N.O.] had threatened or the testimony to be
       offered by the unidentified character witnesses. [Rivera]
       claimed that he talked with [trial counsel] about the
       witnesses and gave him information about how to contact
       his aunt.

           [Rivera] claimed that [trial counsel] erred in not seeking
       to have medical records entered into evidence to establish
       that examinations of the [child victims] did not indicate
       signs of injury. [Rivera] also contended that [trial counsel]
       failed to cross-examine [N.O.], about her relationship with
       [him], and ask her questions about whether [he] had
       cheated on her or put his hands on her. Further, [Rivera]
       claimed that [N.O] had maintained a relationship with him
       after the charges had been filed, that she had posted bail in
       another case for him and that he had been with her in
       Allentown. [Rivera’s] testimony on those claims was not
       clear. After being arrested on the charges in this case,
       [Rivera] never posted bail. [Rivera] also complained that
       [trial counsel] had allowed the Commonwealth to ask
       leading questions of the [child victims] at trial.

          [E.R.] testified that she lived with [Rivera], her brother,
       during the relevant period of the criminal episode and that
       she wanted to testify that he had never been alone with the
       [child victims]. She acknowledged, however, that she had
       not been present with [Rivera] and the [child victims] at all
       times at all locations. [She] also claimed that [Rivera] and
       [N.O.] often argued and that [N.O.] would threaten to call
       the police. Finally, [E.R.] testified that prior to trial she
       called [trial counsel] but he never returned her call.

          [C.C.] testified that he is nineteen years old, is [Rivera’s]
       brother and had lived with [Rivera] but could not remember
       when he had done so since he had been at Northwest
       Academy for two to three years and did not know the time
       period he had been there. [He] claimed that [N.O.] had
       argued with [Rivera] and told him she would have him
       thrown in jail.

          [E.R.P.], an aunt of [Rivera], testified that she wanted to
       testify for [Rivera] at trial and had tried to call and see [trial
       counsel] but that he refused to speak with her, including at


                                     -7-
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        trial. She claimed to have overheard [N.O.] argue with
        [Rivera] and tell him that she was going to put him in jail.

PCRA Court Opinion, 7/21/17, at 3-4.

     The PCRA Court also summarized the testimony presented by the

Commonwealth:

            [Trial counsel], who primarily handles criminal defense
        work and has been an attorney almost forty years, testified
        as a witness for the Commonwealth. At the time of the
        prosecution of this case, he was also representing [Rivera]
        in two other pending cases. [Trial counsel] spoke to the
        witnesses whose identities [Rivera] had provided to [trial
        counsel] to support his defense. [Trial counsel] never
        refused to speak to any witness. He recalled talking to
        various witnesses and that they wanted to offer testimony
        at trial similar to their testimony at the June 15, 2017
        hearing in an attempt to have the jury conclude that [N.O.]
        was lying and had influenced the [child victims]. However,
        [trial counsel] testified that his trial strategy involved
        attacking the credibility of the [child victims], not that of
        [N.O.], and that the witnesses’ proposed testimony was not
        pertinent to his strategy as he believed the relevant issue
        was what happened to the [child victims]. [Trial counsel]
        also believed that information from the potential defense
        witnesses offered by [Rivera] would have been inadmissible
        as hearsay. [The child victims] were the only witnesses to
        testify about the sexual contact engaged in by [Rivera] and
        they admitted at trial that they did not like [Rivera].

            [Trial counsel] did not present written documents at trial
        about physical examinations of the [child victims] since
        there had been no accusation of injuries having be inflicted
        or evident on the [child victims]. He also had received no
        information from [Rivera] to support presenting any witness
        able to offer competent character testimony at trial. Finally,
        [trial counsel] testified that he met with [Rivera] numerous
        times in advance of and to prepare for trial.

PCRA Court Opinion, 7/21/17, at 5.



                                     -8-
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      Rivera first claims that that trial counsel was ineffective for failing to

meet with him prior to trial “to discuss trial strategy, suppression options,

defense options, or possible witness choices.” Rivera’s Brief at 9. According

to Rivera, although the PCRA court referenced trial counsel’s contradictory

testimony, the court “fails to mention any visit to a correctional facility or

intentions to work with [him] on his defense.” Id.

      This claim does not entitle Rivera to post-conviction relief. It is well

settled that the “mere shortness of time for a defendant to confer with his

counsel before trial does not constitute ineffective assistance of counsel.”

Commonwealth v. Robinson, 334 A.2d 687, 688 (Pa. Super. 1975); see

also Commonwealth v. Bundy, 421 A.2d 1050, 1051 (Pa. 1980) (citation

omitted) (explaining that “[t]he time devoted to attorney-client consultations

affords no basis for inferring the total extent of trial preparation”). The PCRA

court credited the testimony of counsel over Rivera’s testimony and other

allegations with regard to pre-trial preparations made by Rivera at the

evidentiary hearing:

            [Trial counsel’s] testimony was credible on having met
         with and interviewed all potential witnesses identified by
         [Rivera], with his having turned none away. Likewise, it
         was established that [trial counsel] met with [Rivera] and
         was prepared for trial.

PCRA Court Opinion, 7/21/17, at 7.

      We cannot disturb this determination. See Commonwealth v. Battle,

883   A.2d   641,   648   (Pa.   Super.   2005)   (explaining   that   credibility


                                     -9-
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determinations are solely within the province of the PCRA court).            Thus,

Rivera’s first claim is meritless.

      Rivera next claims that trial counsel was ineffective for failing to call his

mother and his aunt as defense witnesses at trial. Our Supreme Court has

summarized:

             When raising a claim of ineffectiveness for the failure to
         call a potential witness, a petitioner satisfies the
         performance and prejudice requirements of the Strickland
         test by establishing that: (1) the witness existed; (2) the
         witness was available to testify for the defense; (3) counsel
         knew of, or should have known of, the existence of the
         witness; (4) the witness was willing to testify for the
         defense; and (5) the absence of the testimony of the
         witness was so prejudicial as to have denied the defendant
         a fair trial.    To demonstrate Strickland prejudice, a
         petitioner must show how the uncalled [witness’s]
         testimony would have been beneficial under the
         circumstances of the case. Thus, counsel will not be found
         ineffective for failing to call a witness unless the petitioner
         can show that the witness’s testimony would have been
         helpful to the defense. A failure to call a witness is not per
         se ineffective assistance of counsel for such decision usually
         involves matters of trial strategy.

Commonwealth v. Sneed, 45 A.3d 1096, 1108-09 (citations omitted).

      The PCRA Court concluded that Rivera did not meet this burden:

             As far as the presentation of testimony at trial about
         arguments between [Rivera] and [N.O.] to the effect that
         they occurred often and [N.O.] had been overheard
         threating to call the police, [Rivera] offered no basis to find
         that the testimony on the alleged threats would have been
         admissible [as non-hearsay]. As [Rivera] did not present
         [N.O.] as a witness at the [PCRA] hearing, it is not known
         what she would have said if confronted about those
         allegations. Moreover, [N.O.] testified at trial that she had
         had relationship problems with [Rivera], they had engaged

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          in a lot of arguments, the [child victims] disliked the
          arguments and they wanted [Rivera] “gone.” Further, the
          [child victims] testified at trial about the volatile relationship
          between [N.O.] and [Rivera].            [Trial] counsel elicited
          testimony at trial from the female child that [Rivera] and
          [N.O.] had fought and the child was “mad” at [Rivera]. The
          male child testified at trial that he was angry with [Rivera]
          because [Rivera] always fought with [N.O.] and the child
          wanted [Rivera] out of the house. In light of the foregoing,
          [Rivera] failed to establish that the alleged error by his trial
          counsel in failing to offer testimony from third parties about
          arguments between [Rivera] and [N.O.] has legal merit, or,
          that [he] suffered prejudice by counsel’s failure to call the
          witnesses to testify [to] what they allegedly overheard.
          Importantly, the only witnesses to testify about the sexual
          act perpetuated by [Rivera] were the [child victims] who,
          indeed, testified about their dislike of [Rivera] and that it
          was based, in part, on his arguments with [N.O.].

PCRA Court Opinion, 7/21/17, at 8-9. Our review of the record supports the

PCRA court’s conclusion that Rivera could not establish prejudice. Thus, his

second claim of ineffectiveness fails. Travaglia, supra.

       In his third issue, Rivera asserts that trial counsel was ineffective for

failing to introduce the child victim’s medical records into evidence to establish

that these examinations did not indicate injury.3 The PCRA court concluded

that Rivera could not establish prejudice:

             [Rivera] did not offer any reports regarding the [child
          victims’] physical examinations into evidence at the [PCRA]
____________________________________________


3Rivera also claims that trial counsel was ineffective for failing to call an expert
witness to testify to the validity and content of these reports. As Rivera did
not raise this distinct claim prior to this appeal, it is waived. See generally,
Pa.R.A.P. 302. Nevertheless, this claim would fail for the same reasons as the
PCRA court put forth regarding the medical records, that is, Rivera failed to
assert the existence of any willing expert. See Sneed, supra.


                                          - 11 -
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         hearing or attach reports with either his original or amended
         [petition]. Consequently, the Court is unable to examine
         the substance of the reports. Moreover, [Rivera] offered no
         grounds to find any such reports, had they been presented
         at trial, would have been admissible or relevant. Finally, the
         Commonwealth offered no evidence at trial of either child
         [victim] having suffered any injury or displaying any sign of
         penetration. [Trial] counsel successfully argued the lack of
         any evidence of penetration to the jury in closing argument
         and [Rivera] was found not guilty of the offenses which
         included the element of penile penetration. Consequently,
         [Rivera] did not establish that the claim about medical
         records has legal merit, that the alleged evidence would
         have been admissible or that [he] suffered any prejudice as
         a result of trial counsel’s [in]action.

PCRA Court Opinion, 7/21/17, at 7-8. Our review of the record supports the

PCRA court’s conclusions. Thus, Rivera’s third claim of ineffectiveness fails.

Loner, supra.

      In his fourth claim, Rivera asserts that trial counsel was ineffective for

failing to cross-examine [N.O.] “regarding her past and present relationship

with [him] and whether or not [he] was unfaithful and abusive.” Rivera’s Brief

at 17. According to Rivera, had trial counsel “properly cross-examined” N.O.

“the jury would have become aware that the allegations were false, as what

competent individual would allow the person that sexually assaulted your

children, to participate in a relationship, or be in a position to be near those

children again.” Rivera’s Brief at 17.

    The PCRA court found no merit to Rivera’s claim:

         Despite complaining that his trial counsel erred in failing to
         establish a hostile relationship existed between [him] and
         [N.O.], [Rivera] also complained that his counsel erred in
         not establishing [N.O] purportedly maintained a close,


                                     - 12 -
J-S28023-18


         cordial relationship with [him] after the sex abuse
         allegations arose. [Rivera] claims his counsel erred in not
         cross-examining [N.O.] about her continuing some sort of
         relationship with [him] after the abuse allegations arose. As
         [Rivera] did not present the testimony of [N.O.] at the
         [PCRA] hearing, it is not known what she would have said if
         confronted with the claim. Moreover, [Rivera’s] testimony
         that [N.O.] had posted bail for him was unclear. The record
         established that [Rivera] never posted bail in this case and
         if [N.O.] had posted bail earlier in another case, the
         evidence did not establish how such activity related to the
         timing of the allegations in this case. Further, assuming
         [N.O.] maintained some sort of relationship with [Rivera]
         following the allegations or the filing of criminal charges,
         [Rivera] failed to present evidence to indicate how such
         contact would have been relevant to the evidence at trial or
         would have impacted the verdict. Any alleged feeling [N.O.]
         may have had for [Rivera] is irrelevant to the question of
         whether he sexually abused [the child victims]. She would
         not be the first woman to maintain contact with a boyfriend
         despite her children claiming, or even a jury finding, that he
         sexually assaulted them. Under the facts elicited at trial,
         the alleged ardor of [N.O.] for [Rivera] is irrelevant to the
         issue of whether he assaulted the [child victims]. Further,
         [Rivera] did not establish how testimony on this subject
         would have been admissible or relevant at trial for his
         alleged commission of the crimes. Consequently, [Rivera]
         failed to establish any prong of the test necessary to
         establish a claim of ineffectiveness of trial counsel on such
         basis.

PCRA Court Opinion, 7/21/17, at 9-10.

      Our review of the record supports the PCRA court’s conclusion that

Rivera cannot establish any prong of the test for establishing trial counsel’s

ineffectiveness. Johnson, supra. Trial counsel did cross-examine N.O. at

trial with regard to the problems she was having in her relationship with Rivera

around the time the sex abuse allegations became known, and the fact that

the child victims did not like the constant arguing between them. See N.T.,

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J-S28023-18



4/6/15, at 71-72.     Given this testimony, it is questionable whether trial

counsel would have been able to establish that a cordial relationship existed

after the allegations arose.    At the PCRA hearing, Rivera’s counsel did not

specifically ask trial counsel why he did not bring forth such evidence via cross-

examination of N.O. See N.T., 6/15/17, at 92-99. Thus, Rivera’s final claim

of ineffectiveness does not entitle him to post-conviction relief.

       Because Rivera’s final two issues raised on appeal challenge the legality

of his sentence, we will address them together.        See Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (explaining that a legality of

sentencing claim must be raised in a timely PCRA petition; as long as this

Court has jurisdiction over the matter, a legality of sentencing issue is

reviewable and cannot be waived).

       Rivera asserts that since his sentence included a mandatory minimum

pursuant to 42 Pa.C.S.A. section 9718, his sentence is illegal because section

9718    was   held   to   be   unconstitutional   by   our   Supreme   Court    in

Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). He further asserts that

because section 9718 is void “ab initio” he is entitled to resentencing. See

Rivera’s Brief at 23-25. Finally, Rivera asserts that the “Teague v. Lane, 488

U.S. 288 (1989) non-retroactivity standard cannot be applied to statutes that

were deemed void ab initio.” Rivera’s Brief at 26.

       Our review of the certified record reveals that Rivera’s judgment of

sentence was not final when our Supreme Court issued its decision in Wolfe

on June 20, 2016. Thus, we need not determine retroactivity, because Rivera

                                      - 14 -
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may seek post-conviction relief pursuant to the holding in Wolfe in this

appeal. See Commonwealth v. Ruiz, 131 A.3d 54, 59 (Pa. Super.

2015)(explaining that Ruiz was entitled to resentencing in light of Alleyne v.

United States, 133 S.Ct. 2151 (2013), since he raised the claim in a timely

PCRA petition, and his judgment of sentence had not become final when

Alleyne was decided).         Nevertheless, at sentencing, the trial court noted

recent appellate decisions discussing the unconstitutionality of mandatory

minimums in Pennsylvania, and concluded that she was not sentencing based

upon any mandatory minimum, but rather based on the guidelines as to each

conviction.    See N.T., 7/20/15, at 49-50, 61.        As such, Rivera’s illegal

sentencing claim fails.4

       In sum, the PCRA court correctly determined that Rivera did not

establish any of his claims of trial counsel’s ineffectiveness.     In addition,

Rivera’s illegal sentencing claims are without merit. We therefore affirm the

PCRA court’s order denying post-conviction relief.


____________________________________________


4 We further note that, although Rivera was designated a sexually violent
predator (SVP), his judgment of sentence became final on February 27, 2017,
which predated a panel decision by this Court, on October 31, 2017, finding
the SVP process unconstitutional. See generally, Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017). Even if Rivera was to file an
untimely PCRA petition, he still could not prevail in establishing the PCRA’s
“new constitutional right time bar exception. For this exception to apply, the
right asserted must be a constitutional right that was recognized by the United
States Supreme Court or the Supreme Court of Pennsylvania after the time
period provided in this section and had been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii). Butler satisfies neither
requirement.

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Order affirmed.

Judge Musmanno joins in the Memorandum.

Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/24/2018




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