J-S05025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JUAN PABLO VAZQUEZ

                            Appellant                 No. 1069 MDA 2016


                   Appeal from the PCRA Order June 1, 2016
             In the Court of Common Pleas of Susquehanna County
              Criminal Division at No(s): CP-58-CR-0000323-2010


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                            FILED MARCH 03, 2017

        Appellant, Juan Vazquez, appeals pro se from the order dismissing his

third petition pursuant to the Post Conviction Relief Act (“PCRA”) as

untimely. Vazquez raises multiple challenges to the PCRA court’s order, but

we conclude that the PCRA court correctly concluded that it lacked

jurisdiction to entertain the petition. We therefore affirm.

        After a bench trial, Vazquez was convicted of, among others,

possession of cocaine with intent to deliver. On April 20, 2011, the trial court

imposed a mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508.

This Court affirmed the judgment of sentence, and on December 4, 2012,


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the Supreme Court of Pennsylvania denied Vazquez’s petition for allowance

of appeal.

      In the intervening years, Vazquez has filed multiple collateral attacks

on his judgment of sentence, including his second PCRA petition in October

2014, in which he challenged the imposition of the mandatory minimum

sentence under Alleyne v. United States, 133 S.Ct. 2151 (2013). All of his

petitions were dismissed.

      On March 24, 2016, Vazquez filed the instant PCRA petition, once

again raising Alleyne in a challenge to his sentence. The PCRA court

dismissed the petition without a hearing, and this timely appeal followed.

      On appeal, Vazquez seeks to raise five challenges to the PCRA court’s

order. However, before we can address any alleged errors committed by the

PCRA court, we must determine whether the PCRA court was correct in

concluding that it did not have jurisdiction to entertain Vazquez’s petition.

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA must be filed within one year

of the date the judgment is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the

petition alleges and proves an exception to the time for filing the petition,

see 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Vazquez’s judgment of sentence became final on March 4, 2013, when

the ninety-day time period for filing an appeal to Supreme Court of the


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United States expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

Therefore, Vazquez needed to file a petition by March 4, 2014, in order for it

to be timely. As the current petition was not filed until March 24, 2016, more

than two years after the deadline, it is patently untimely.

       Thus, in order for the PCRA court to have jurisdiction over the petition,

Vazquez was required to plead and prove one of the time-bar exceptions.

Vazquez pled that Alleyne represents the creation of a new constitutional

right with retroactive application. See 42 Pa.C.S.A. § 9545(b)(1)(iii).1

However, “Alleyne does not apply retroactively to cases pending on

collateral review….” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016). See also Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.

Super. 2015) (“Alleyne is not entitled to retroactive effect in this PCRA

setting.”)

       In any event, even if Alleyne applied retroactively in the PCRA

context, a PCRA petition invoking one of those statutory exceptions must “be

filed within sixty days of the date the claims could have been presented.”

Hernandez, 79 A.3d at 651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)).

____________________________________________


1
  Vazquez further argues that Montgomery v. Louisana, 136 S.Ct. 718
(2016), filed exactly 60 days before Vazquez’s petition, rendered Alleyne
retroactive in nature, and qualifies his petition for the time-bar exception.
This claim is patently meritless. Our review of Montgomery reveals that it is
concerned with the Eighth Amendment as applied in Miller v. Alabama, 132
S.Ct. 2455 (2012), and does not reference Alleyne or Alleyne’s foundation,
the Sixth Amendment.



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However, Alleyne was decided on June 17, 2013. Vazquez filed the instant

petition on March 26, 2016, clearly not within the sixty days required by 42

Pa.C.S.A. § 9545(b)(2).

     Similarly, Vazquez’s argument that Pa.R.A.P. 121(a) Filing renders his

appeal timely has absolutely no basis in the law, as that rule governs only

procedural timeliness of an appeal; it has no relevance to the jurisdictional

requirements of the PCRA.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2017




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