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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

JOSE MIGUEL GARCIA

                           Appellant                   No. 316 MDA 2017


                Appeal from the PCRA Order January 17, 2017
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0005594-2002


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 03, 2017

        Jose Miguel Garcia appeals pro se from the trial court’s order

dismissing, as untimely, his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.                He asserts that the

mandatory minimum provision applied to his sentence makes his sentence

illegal. After careful review, we affirm.

        Garcia entered a negotiated guilty plea to third-degree murder and

related offenses on November 17, 2003.         Garcia was sixteen years old at

the time he committed the offenses. Garcia was sentenced to 20-40 years’

imprisonment; he did not file post-sentence motions or a direct appeal.       On

March 15, 2016, Garcia filed the instant PCRA petition seeking to withdraw

his guilty plea based on the rights espoused in the United States Supreme

Court    decisions,   Miller   v.   Alabama,   132   S.Ct.    2455   (2012)   and
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Montgomery v. Louisiana, 136 S.Ct. 718, 736 (filed Jan. 25, 2016).1 On

January 17, 2017, the court dismissed his petition. He filed a timely appeal.

On appeal, Garcia raises the following issues for our review:

       (1)    Does not the decision of the Pennsylvania Supreme Court
              in Commonwealth v. Vasquez, 744 A.2d 1284 (Pa.
              2000), which held that non-compliance with Pa.R.Crim.P.[]
              . . .1410 and [] 42 Pa.C.S.A. § 5505 creates no bar to
              reviewing the application by the trial court of 42 Pa.C.S. §
              9714?

       (2)    Does not the recent decision of the United States Supreme
              Court in Alleyne v United States, 133 S.Ct. 2151 (2013),
              and its progeny, Commonwealth v. Newman, 99 A.3d
              86 ([Pa. Super.] 2014), including Commonwealth v.
              Wat[le]y, 81 A.3d 108, 117 (Pa. Super. 2013),
              Commonwealth v. Valentine, [101 A.3d 801 (Pa. Super.
              2014)], Commonwealth v. [Hopkins], 117 A.3d 247
              (Pa. 2015), and Commonwealth v. Wolfe, 121 A.3d 433
              (Pa. 2016), constitute illegal sentencing claims that any
              fact that, by law, increased the penalty for a crime is not
              an “element” that must be submitted to the jury and found
              beyond a reasonable doubt?

       (3)    Does not the PCRA Court’s answer fail to address
              Petitioner’s illegal sentencing claims that non-compliance
              with Pa.R.Crim.P.’s [sic] create no bar to reviewing the
              application by the trial court in any meaningful way, for it
              also fails to even mention the applicability of 42 Pa.C.S. §
              9542 action established in 42 Pa.C.S. pt. VIII, ch. 95,
              subch. B shall be the sole means of obtaining collateral
              relief and encompass all other common law and statutory
____________________________________________


1
  In Montgomery, the Supreme Court determined that the holding of Miller
is a substantive rule of constitutional law to which state collateral review
courts were required, as a constitutional matter, to give retroactive effect.
In Miller, supra, the United States Supreme Court held that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile homicide offenders.” Miller, 132
S.Ct. at 2469.



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            remedies for the same purpose that exist when subch. B
            takes effect, before denying the PCRA motion as without
            merit and untimely filed?

      Our standard of review is well established. “In reviewing the denial of

PCRA relief, we examine whether the PCRA court's determination ‘is

supported by the record and free of legal error.’”         Commonwealth v.

Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.

Rainey, 928 A.2d 215, 223 (Pa. 2007)).

      Instantly, the PCRA court dismissed Garcia’s petition as untimely filed.

The PCRA requires that any petition must be filed within one year of the date

the judgment becomes final.       42 Pa.C.S.A. § 9545(b)(1).       “A judgment

becomes final at the conclusion of direct review . . . or at the expiration of

time for seeking the review.”    42 Pa.C.S.A. § 9545(b)(3).      Moreover, it is

important to note that "although illegal sentencing issues cannot be waived,

they still must be presented in a timely PCRA petition." Commonwealth v.

Taylor, 65 A.3d 462 (Pa. Super. 2013) (emphasis added).

      Garcia’s judgment of sentence became final on December 17, 2003, at

the expiration of the 30-day time limit for filing a direct appeal in this Court.

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, he had one year

from that date, or until December 17, 2004, to file a timely PCRA petition.

See 42 Pa.C.S.A. § 9545(b)(1).       He did not file the instant petition until

March 15, 2016, more than eleven years late.       Accordingly, the PCRA court

had no jurisdiction to entertain Garcia’s petition unless he established one of

the exceptions to the jurisdictional time bar.


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       A PCRA court will entertain an otherwise untimely petition if the

petitioner pleads and proves that: (1) the failure to raise a timely claim was

the result of interference by government officials; (2) 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 (3) the right asserted

is a constitutional right that has been recognized by the United States

Supreme Court or the Supreme Court of Pennsylvania after the one-year

time period, and has been held to apply retroactively.           Id.   Any petition

invoking one of these exceptions must be filed within 60 days of the date the

claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).2

       All of Garcia’s issues on appeal are grounded in his assertion that his

sentence is illegal and should be vacated pursuant to Alleyne v. United

States, 133 S. Ct. 2151 (2013).3               In Alleyne, the Court held that an

element of an offense that increased the mandatory minimum sentence

must be found by a jury beyond a reasonable doubt. 133 S. Ct. at 2155.

____________________________________________


2
 Notably, Garcia filed his petition within 60 days of the date of the filing of
Montgomery.
3
  While Garcia’s PCRA petition cites to Miller and Montgomery as support
for his entitlement to relief, he only argues Alleyne in his brief and in his
Pa.R.A.P. 1925(b) concise statement.             However, even if Garcia’s
Miller/Montgomery claim were preserved on appeal, he would not be
entitled to relief as he was not sentenced to life without parole. See Miller,
supra (juvenile convicted of homicide offense cannot be sentenced to life in
prison without parole absent consideration of juvenile’s special
circumstances in light of principles and purposes of juvenile sentencing).



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However, in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016),

the Supreme Court of Pennsylvania held that although Alleyne establishes a

new rule of federal constitutional law, it does not apply retroactively to cases

pending on collateral review.     Washington, supra at 820.          Moreover,

pursuant to Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super.

2015), Alleyne will only be applied to cases pending on direct appeal when

Alleyne was issued.       Here, Alleyne was issued ten years after Garcia’s

sentence could have been directly appealed.        Accordingly, Garcia is not

entitled to relief; the trial court lacked jurisdiction to consider his petition

and properly dismissed it as untimely. Taylor, supra.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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