J-S66001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FELIX BENJI OCASIO,

                            Appellant                No. 1527 WDA 2015


            Appeal from the PCRA Order Entered September 3, 2015
                In the Court of Common Pleas of Blair County
                          Criminal Division at No(s):
                           CP-07-CR-0000940-1999
                           CP-07-CR-0000941-1999
                           CP-07-CR-0000942-1999
                           CP-07-CR-0000945-1999
                           CP-07-CR-0000946-1999
                           CP-07-CR-0000947-1999
                           CP-07-CR-0001083-1999
                           CP-07-CR-0001644-1999


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

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 30, 2017

        Appellant, Felix Benji Ocasio, appeals from the post-conviction court’s

September 3, 2015 order denying, as untimely, his petition filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

        We need not set forth a detailed summary of the facts of Appellant’s

underlying convictions for purposes of this appeal.        We only note that

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Appellant was involved in a heroin trafficking ring operating in Blair County,

Pennsylvania, from January through May of 1999.            For this conduct,

Appellant was convicted, in eight separate cases, of various drug-related

offenses, including nine counts of possession with intent to deliver a

controlled substance. Appellant was originally sentenced on March 8, 2001,

but, on direct appeal, this Court vacated that sentence and remanded for

resentencing. Commonwealth v. Ocasio, 792 A.2d 616 (Pa. Super. 2001)

(unpublished memorandum).

      On November 27, 2001, Appellant was resentenced to an aggregate

term of 39 to 78 years’ incarceration. He did not file a direct appeal and,

therefore, his judgment of sentence became final on December 27, 2001.

See 42 Pa.C.S. § 9545(b)(3) (directing that judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for

seeking the review); Pa.R.A.P. 903(a) (stating that a notice of appeal to

Superior Court must be filed within 30 days after the entry of the order from

which the appeal is taken). In April of 2002, Appellant filed a pro se PCRA

petition, and counsel was appointed. Ultimately, that petition was denied,

and this Court affirmed on appeal.     See Commonwealth v. Ocasio, 30

A.3d 540 (Pa. Super. 2011) (unpublished memorandum).

      On July 30, 2015, Appellant filed a counseled PCRA petition, which

underlies the present appeal. On September 3, 2015, the court entered an




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order denying that petition without a hearing.1    Appellant filed a timely,

counseled notice of appeal on October 2, 2015.2 Herein, Appellant presents

one issue for our review:

       I.     Whether the [PCRA] court erred in refusing to resentence
              Appellant following the finding that the Pennsylvania
              mandatory minimum sentencing provisions for drug
              offenses is unconstitutional and whether that finding
              should be applied to [] Appellant retroactively[?]

Appellant’s Brief at 1.

       This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.   Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to
____________________________________________


1
  We recognize that the PCRA court did not issue a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. However, Appellant does not
object to that error on appeal and, therefore, any challenge thereto is
waived. See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super.
2000). Moreover, “our Supreme Court has held that where the PCRA
petition is untimely, the failure to provide [a Rule 907] notice is not
reversible error.” Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.
Super. 2007) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7
(Pa. 2000)). As discussed, infra, we conclude that Appellant’s petition is
untimely, and he fails to meet any timeliness exception. Accordingly, the
PCRA court’s failure to provide a Rule 907 notice would not be reversible
error, even had Appellant not waived this claim for our review.
2
  Our disposition of Appellant’s appeal was delayed due to procedural
complexities, including a remand to the PCRA court to ascertain the status of
counsel’s representation of Appellant herein.



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address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).




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          Here, Appellant’s judgment of sentence became final in December of

2001, and thus, his present petition filed in July of 2015 is facially untimely.

For this Court to have jurisdiction to review the merits thereof, Appellant

must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

          Appellant argues that he meets the ‘new retroactive right’ exception of

section 9545(b)(1)(iii) based on Alleyne v. United States, 133 S.Ct. 2151,

2163 (2013) (holding that “facts that increase mandatory minimum

sentences must be submitted to the jury” and found beyond a reasonable

doubt).      Appellant contends that several, unspecified mandatory minimum

sentences were imposed in his case, which are now illegal under Alleyne.

He also avers that Alleyne “applies retroactively to him because it is a rule

of substance, affecting his Sixth Amendment rights and a watershed decision

because it affected the entire sentencing scheme….” Appellant’s Brief at 7.

          It is well-settled that petitioners cannot rely on Alleyne to satisfy the

timeliness exception of section 9545(b)(1)(iii) because “neither our Supreme

Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence had become

final.”     Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Indeed, our Supreme Court has explicitly held that Alleyne does not apply

retroactively to cases pending on collateral review, because it is neither a

‘substantive rule,’ nor “a rule … of a groundbreaking, ‘watershed’ character.”

See Commonwealth v. Washington, 142 A.3d 810, 818–20 (Pa. 2016).

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While Appellant argues that we should apply Alleyne retroactively in his

case, this Court is not only bound by the holding of Washington, but we

also do not have jurisdiction to assess Appellant’s retroactivity arguments

because his petition is untimely.   Thus, the PCRA court did not err in

dismissing Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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