J-S64043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BARRY LEE CRESPO                           :
                                               :
                       Appellant               :   No. 1229 WDA 2019

               Appeal from the PCRA Order Entered July 25, 2019
      In the Court of Common Pleas of Bedford County Criminal Division at
                        No(s): CP-05-CR-0000343-2008


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

MEMORANDUM BY PELLEGRINI, J.:                       FILED DECEMBER 10, 2019

        Barry Lee Crespo (Crespo) appeals from the order entered by the Court

of Common Pleas of Bedford County (PCRA court) dismissing his fourth

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546, as untimely. We affirm.

        Following a March 2009 jury trial, Crespo was convicted of six counts

each of corruption of minors and indecent assault, five counts each of

aggravated indecent assault, and one count each of involuntary deviate sexual

intercourse (IDSI), unlawful contact with a minor and statutory sexual assault.

The facts underlying Crespo’s conviction involved his engaging in sex acts with

a fourteen-year-old female while he was a youth advocate counselor and she


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*   Retired Senior Judge assigned to the Superior Court.
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was receiving counseling services.             The trial court sentenced Crespo to an

aggregate term of not less than twenty nor more than forty years’

imprisonment.1      This Court affirmed the judgment of sentence on July 27,

2010. Crespo did not file a petition for allowance of appeal with our Supreme

Court.2 Crespo thereafter unsuccessfully litigated three PCRA petitions.

       On March 25, 2019, Crespo filed the instant untimely pro se PCRA

petition, arguing primarily that his mandatory minimum sentence is illegal

based on the United States Supreme Court’s decision in Alleyne v. United

States, 133 S.Ct. 2151 (2013).3 (See PCRA Petition, 3/25/19, at 1-3). The

PCRA court issued notice of intent to dismiss the petition without a hearing on

June 11, 2019, see Pa.R.Crim.P. 907(1), and filed an order dismissing it on



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1The court sentenced Cresco to the mandatory minimum term of incarceration
of ten years on the IDSI count. See 42 Pa.C.S. § 9718(a)(1) (providing
mandatory minimum term of incarceration for IDSI conviction); (see also
Sentencing Order, 6/18/09, at 1; N.T. Sentencing, 6/18/09, at 8, 29).

2Crespo’s judgment of sentence therefore became final on August 26, 2010,
when his time to file a petition for allowance of appeal expired. See 42 Pa.C.S.
§ 9545(b)(3), infra.

3  In Alleyne, the United States Supreme Court held that under the Sixth
Amendment to the United States Constitution, a jury must find beyond a
reasonable doubt any facts that increase a mandatory minimum sentence.
See Alleyne, supra, at 2158. In Commonwealth v. Wolfe, 140 A.3d 651
(Pa. 2016), the Pennsylvania Supreme Court held “that Section 9718 is
irremediably unconstitutional on its face, non-severable, and void[,]” in light
of Alleyne. Wolfe, supra at 663.




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June 25, 2019. Crespo timely appealed, and he and the PCRA court complied

with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

       Crespo argues that his mandatory minimum sentence is unconstitutional

and void pursuant to Alleyne and Wolfe. (See Crespo’s Brief, at 6-10; PCRA

Petition, at 1-3).4 However, “[b]efore we can address the merits of the issues

raised, we must determine whether Appellant has established that his PCRA

petition was timely filed, as the time-bar is jurisdictional.    42 Pa.C.S. §

9545(b).”    Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super.

2018). “A PCRA petition, including a second or subsequent petition, shall be

filed within one year of the date the underlying judgment becomes final.” Id.

(citation omitted). “[A] judgment becomes final at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       As noted above, the instant petition is untimely because Crespo filed it

more than eight years after his judgment of sentence became final. Because

it is untimely, we have no jurisdiction to consider it unless Crespo pled and




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4 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018) (citation omitted).


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proved one of the three limited exceptions to the PCRA’s one-year time

limitation set forth in Section 9545:

      (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 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). “It is the petitioner’s burden to allege and

prove that one of the timeliness exceptions applies.”       Commonwealth v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted).

      Crespo invokes the applicability of the newly-recognized constitutional

right exception at Section 9545(b)(1)(iii) by arguing a right to relief under

Alleyne and Wolfe.      However, Crespo’s contentions that his sentence is

unconstitutional and that a claim challenging the legality of a sentence cannot

be waived do not allow him to circumvent the PCRA’s timeliness requirements.

      It is well-settled that, “in order for this Court to review a legality of

sentence claim, there must be a basis for our jurisdiction to engage in such

review. . . . [T]hough not technically waivable, a legality [of sentence] claim

may nevertheless be lost should it be raised . . . in an untimely PCRA petition

for which no time-bar exception applies, thus depriving the court of jurisdiction


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over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014) (citations and internal quotation marks omitted) (concluding PCRA court

correctly dismissed PCRA petition raising Alleyne claim as untimely). In any

event, our Supreme Court has addressed the retroactive effect of Alleyne,

and has expressly held “that Alleyne does not apply retroactively to cases

pending on collateral review[.]” Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016).5

         Because Crespo’s PCRA petition is untimely and he has failed to establish

an exception to the PCRA’s timeliness requirements, we lack jurisdiction to

consider the merits of his claims. Accordingly, we affirm the order of the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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5 We note that Crespo also attempts to challenge the discretionary aspects of
his sentence; however, he previously fully litigated this issue on direct appeal.
(See Crespo’s Brief, at 2, 10-17; Commonwealth v. Crespo, No. 1856 WDA
2009 (Pa. Super. 7/27/10, at 3, 11-15) (unpublished memorandum)); see
also 42 Pa.C.S. §§ 9543(3), 9544(a)(2).

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