J-S23013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MARTIN ZAVALA-ZAVALA

                            Appellant                 No. 3095 EDA 2015


               Appeal from the PCRA Order September 23, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000909-2013


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                               FILED JUNE 14, 2016

        Appellant, Martin Zavala-Zavala, appeals pro se from the order

dismissing his third petition pursuant to the Post Conviction Relief Act

(“PCRA”) as untimely. After careful review, we conclude that Zavala-Zavala’s

petition was patently untimely and did not plead a viable exception to the

PCRA’s time bar. We therefore affirm.

        On July 18, 2013 Zavala-Zavala entered a negotiated plea of guilty to

two counts of possession of a controlled substance, cocaine, with the intent

to deliver. Pursuant to the agreement, the trial court immediately sentenced

Zavala-Zavala to a term of six to twelve years’ incarceration, which included


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*
    Former Justice specially assigned to the Superior Court.
J-S23013-16


a mandatory minimum sentence of five to ten years on count 2. Zavala-

Zavala did not file a direct appeal from his judgment of sentence.

       Zavala-Zavala filed his first PCRA petition on April 14, 2014. Counsel

was appointed to represent Zavala-Zavala, and the PCRA court subsequently

permitted counsel to withdraw pursuant to the Turner/Finley process.1 The

PCRA court dismissed Zavala-Zavala’s first PCRA petition on August 19,

2014, and Zavala-Zavala did not file any appeal from the dismissal.

       Zavala-Zavala filed his second PCRA petition on August 29, 2014. The

PCRA court dismissed Zavala-Zavala’s second PCRA petition as untimely.

Zavala appealed the dismissal, and this Court affirmed on June 16, 2015.

Zavala-Zavala      did   not    seek    review   before   the   Supreme   Court   of

Pennsylvania.

       Zavala-Zavala filed the instant PCRA petition, his third, on July 21,

2015. The PCRA court dismissed the petition as untimely, and this timely

appeal followed.

       As the PCRA court dismissed Zavala-Zavala’s petition on timeliness

grounds, we must address that issue before any of Zavala-Zavala’s other

issues on appeal. See Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa.

Super. 2012) (“[A] question of timeliness implicates the jurisdiction of our

Court.”). “The PCRA timeliness requirements are jurisdictional in nature and,
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1
 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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accordingly, a court cannot hear untimely PCRA petitions.” Commonwealth

v. Flanagan, 854 A.2d 489, 509 (Pa. 2004) (citations omitted).

       A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1).

Zavala-Zavala’s third PCRA petition, filed on July 21, 2015, is patently

untimely, as his judgment of sentence became final on August 19, 2013.

Thus, the PCRA court did not have “jurisdiction to grant [him] relief unless

he can plead and prove that one of the exceptions to the time bar provided

in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies.” Commonwealth v. Pursell,

749 A.2d 911, 914 (Pa. 2000).

       Zavala-Zavala has not pled any viable exceptions to the timebar. See

PCRA petition, filed 6/1/15. Primarily, he argues that his sentence is illegal

under Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).2 He contends

that Alleyne is retroactive. This Court has held that Alleyne is not a

decision upon which a petitioner may establish an exception to the PCRA’s

timebar. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014). As a result, Zavala-Zavala’s appeal merits no relief.

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2
  Perhaps in an effort to save his argument from the application of the sixty-
day limitation period in 42 Pa.C.S.A. § 9545(b)(2), Zavala-Zavala argues
that his claim was premised upon Commonwealth v. Hopkins, 117 A.3d
247 (Pa. 2015). However, a review of Hopkins reveals that it was
concerned with the application of Alleyne to the Pennsylvania Drug-Free
School Zone Act, 18 Pa.C.S.A. § 6317. Zavala-Zavala was not sentenced
under this provision, and therefore Hopkins is utterly irrelevant.



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     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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