J-S82032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

OSVALDO RODRIGUEZ,

                            Appellant                     No. 887 MDA 2016


                    Appeal from the PCRA Order May 4, 2016
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0002551-2006


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED DECEMBER 15, 2016

        Appellant,   Osvaldo     Rodriguez,    appeals   pro   se   from   the   order

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        The relevant facts and procedural history of this case are as follows.

On September 28, 2007, Appellant pleaded guilty to one count of third

degree murder and one count of criminal conspiracy to commit murder.1

The charges arose from the shooting death of Jamien Cooper.                      After

consideration of a pre-sentence investigation report, on December 10, 2007,

the trial court sentenced Appellant to an aggregate term of not less than

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(c) and 903(a)(1), respectively.
J-S82032-16



seventeen nor more than thirty-five years’ incarceration.        The trial court

ordered Appellant to pay restitution in the amount of $15,980.00. It further

directed that, “[t]o the extent any of your coconspirators pays their

proportionate share, then your share will be correspondingly reduced.

However, absent such payment, you are fully responsible for the full

amount.” (N.T. Sentencing, 12/10/07, at 33).2 Appellant indicated on the

record that he did not have any questions about his sentence. (See id. at

35-36). This Court dismissed Appellant’s direct appeal on July 23, 2009, and

he did not file a petition for allowance of appeal with our Supreme Court.

(See Commonwealth v. Rodriguez, 981 A.2d 932 (Pa. Super. 2009)

(unpublished memorandum)).

        On October 19, 2015,3 Appellant filed a pro se petition challenging the

restitution portion of his sentence, claiming that he is not responsible for the

entire restitution amount.       The court treated the filing as a PCRA petition

and appointed       counsel.4       On December    15, 2015, counsel filed a


____________________________________________


2
    See 18 Pa.C.S.A. § 1106(c)(1)(requiring court to order full restitution).
3
  We deem Appellant’s petition filed on the day it was dated rather than on
the day it was docketed pursuant to the prisoner mailbox rule.         See
Commonwealth v. Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).
4
  See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011),
appeal denied, 47 A.3d 845 (Pa. 2012) (“We have repeatedly held that . . .
any petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.”) (citation omitted).




                                           -2-
J-S82032-16



Turner/Finley5 no-merit letter and petition to withdraw. After consideration

of Appellant’s pro se response, which referred to Alleyne v. United States,

133 S.Ct. 2151 (2013),6 the court issued notice of its intent to dismiss the

PCRA petition without a hearing as untimely. See Pa.R.Crim.P. 907(1); (see

also Appellant’s Response to Counsel’s No-Merit Letter, 1/04/16, at 6). In

its Rule 907 notice, the court noted Appellant’s “oblique reference” to

Alleyne, and stated that Alleyne is not applicable because Appellant is not

serving a mandatory minimum sentence. (Rule 907 Notice, 3/17/16, at 6).

After Appellant filed a response, the PCRA court entered its order dismissing

the PCRA petition and granting counsel’s petition to withdraw on May 4,

2016. This timely appeal followed.7

       Appellant raises the following issues for our review:

          1. Was [A]ppellant denied his right to due process and equal
          protection of law where, mandatory minimum sentencing
          enhancement provided an improper starting point for
          consideration of the sentence(s) imposed?


____________________________________________


5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6
  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.
7
  The court did not order Appellant to file a concise statement of errors
complained of on appeal. It filed an opinion on July 15, 2016. See
Pa.R.A.P. 1925.



                                           -3-
J-S82032-16


        2. Was [A]ppellant denied his right to due process and equal
        protection of law where, the full amount of restitution was
        imposed joint and several with the co-defendants in this
        case?

        3. Was [A]ppellant denied his right to effective assistance of
        counsel at plea/sentencing and on PCRA review where,
        counsel put forth an issue of arguable merit, but failed to
        develop said issue for review?

        4. Does the Commonwealth waive procedural default/time-
        bar where, the [PCRA] [c]ourt’s Rule 907 [d]ismissal and
        [o]rder addresses [A]ppellant’s merits while arguing matters
        of procedural default or procedural time-bar?

  (Appellant’s Brief, at 3).

     We begin by addressing the timeliness of Appellant’s PCRA petition.

           In reviewing an order denying post-conviction relief, we
     examine whether the trial court’s determination is supported by
     evidence of record and whether it is free of legal error. Where
     an issue presents a question of law, the appellate court’s
     standard of review is de novo, and its scope of review is plenary.
     ...

            The PCRA provides eligibility for relief in conjunction with
     cognizable claims, . . . and requires petitioners to comply with
     the timeliness restrictions. . . . [A] PCRA petition, including a
     second or subsequent petition, must be filed within one year of
     the date that judgment becomes final. A judgment becomes
     final for purposes of the PCRA 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.

            It is well-settled that the PCRA’s time restrictions are
     jurisdictional in nature.      As such, this statutory time-bar
     implicates the court’s very power to adjudicate a controversy
     and prohibits a court from extending filing periods except as the
     statute permits.     Accordingly, the period for filing a PCRA
     petition is not subject to the doctrine of equitable tolling;
     instead, the time for filing a PCRA petition can be extended only



                                    -4-
J-S82032-16


        by operation of one of the statutorily enumerated exceptions to
        the PCRA time-bar.

               The exceptions to the PCRA time-bar are found in Section
        9545(b)(1)(i)–(iii) (relating to governmental interference, newly
        discovered facts, and newly recognized constitutional rights),
        and it is the petitioner’s burden to allege and prove that one of
        the timeliness exceptions applies. Whether a petitioner has
        carried his burden is a threshold inquiry that must be resolved
        prior to considering the merits of any claim. . . .

Commonwealth           v.   Robinson,      139   A.3d   178,   185–86   (Pa.    2016)

(quotation marks and citations omitted).

        In this case, Appellant’s judgment of sentence became final on August

24, 2009, upon expiration of the time to file a petition for allowance of

appeal with the Pennsylvania Supreme Court.              See Pa.R.A.P. 903(a); 42

Pa.C.S.A. § 9545(b)(3).8 Therefore, Appellant had until August 24, 2010, to

file a timely PCRA petition.          See 42 Pa.C.S.A. § 9545(b)(1).       Because

Appellant filed the instant petition on October 19, 2015, it is untimely on its

face, and the PCRA court lacked jurisdiction to review it unless he pleaded

and proved one of the statutory exceptions to the time-bar.                    See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

        Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

              (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;
____________________________________________


8
    The filing deadline fell on a Saturday.



                                           -5-
J-S82032-16



            (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.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been

pled and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”   Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super.

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

      Here, although not expressly pleaded, it appears Appellant attempts to

invoke the newly recognized and retroactively applied constitutional right

exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) by reference to Alleyne, supra.

(See Appellant’s Brief, at 7, 13-15 (stating that Alleyne established new

constitutional rule of law, and that numerous Pennsylvania mandatory

minimum statutes have been deemed unconstitutional pursuant to that

decision)). However, as the PCRA court noted, Alleyne is not applicable in

this case because Appellant is not serving a mandatory minimum sentence.

(See Rule 907 Notice, at 6). Moreover, “our Supreme Court recently filed an



                                    -6-
J-S82032-16



opinion in Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016)

wherein it addressed the retroactive effect of Alleyne and held ‘that

Alleyne does not apply retroactively to cases pending on collateral review. .

. .’” Commonwealth v. Whitehawk, 2016 WL 4473779, at *4 (Pa. Super.

filed Aug. 24, 2016) (internal citation formatting provided).             Therefore,

Appellant’s claim premised on Alleyne fails.

       Finally, we address Appellant’s argument that “even if [he] tentatively

agreed to the open-ended restitution order,”9 the sentence of restitution is

illegal and must be corrected.         (Appellant’s Brief, at 10).   Specifically, he

asserts that a challenge to the legality of sentence cannot be waived, and

that an illegal sentence is always subject to correction on collateral review.

(See id. at 5, 10, 17). We disagree.

       As previously noted, “the period for filing a PCRA petition is not subject

to the doctrine of equitable tolling; instead, the time for filing a PCRA

petition can be extended only by operation of one of the statutorily

enumerated exceptions to the PCRA time-bar.”             Robinson, supra at 185

(citation omitted). It is well-settled that “[a]lthough 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.”          Commonwealth v.


____________________________________________


9
  Appellant’s characterization of the restitution order as “open-ended” is
inaccurate and misleading since the court ordered the fixed amount of
$15,980.00.



                                           -7-
J-S82032-16



Fowler, 930 A.2d 586, 592 (Pa. Super. 2007), appeal denied, 944 A.2d 756

(Pa. 2008) (citations omitted) (emphasis added).

       Instantly, Appellant’s petition is untimely and he has failed to plead or

prove the applicability of any of the three limited exceptions to the PCRA’s

jurisdictional time-bar. Therefore, we conclude that the PCRA court properly

dismissed Appellant’s PCRA petition as untimely with no exception to the

time-bar pleaded or proven. See Robinson, supra at 185.10 Accordingly,

we affirm the order of the PCRA court.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2016




____________________________________________


10
  We note for the sake of completeness that Appellant’s representation that
he “tentatively agreed” to the “open-ended” restitution order is refuted by
the record, which reflects that the court expressly informed Appellant that
he was “fully responsible for the full amount” of restitution, and that
Appellant had no questions about the sentence. (Appellant’s Brief, at 10;
N.T. Sentencing, 12/10/07, at 33; see also id. at 35-36).




                                           -8-
