J-S39038-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
MANUEL MORALES,                            :
                                           :
                  Appellant                :            No. 308 EDA 2015

        Appeal from the PCRA Order entered on November 24, 2014
             in the Court of Common Pleas of Carbon County,
              Criminal Division, No. CP-13-CR-0000678-2004

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JULY 17, 2015

      Manuel Morales (“Morales”) appeals from the Order denying his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On July 21, 2005, Morales entered into a negotiated guilty plea to

three counts of aggravated indecent assault.      On December 12, 2005, the

trial court sentenced Morales to three consecutive sentences of not less than

30 months to not more than 60 months for a total period of not less than 90

months to not more than 180 months in prison.            Morales filed a Post-

Sentence Motion to reconsider the sentence on December 30, 2005, which

the trial court denied. Morales did not file a direct appeal.
J-S39038-15


      On July 7, 2014, Morales filed the instant PCRA Petition.            After

providing a Pa.R.Crim.P. 907 Notice, the PCRA court denied the Petition on

November 24, 2014. Morales filed a timely Notice of Appeal.

      On appeal, Morales raises the following question for our review:

“Whether the [trial c]ourt improperly applied a mandatory minimum

sentence upon [Morales] and that the sentence violated his constitutional

rights[?]” Brief for Appellant at 3.

      We review an order denying a petition under the PCRA in the light

most favorable to the prevailing party at the PCRA level. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The review is limited to the findings

of the PCRA court and the evidence of record.          Id.   The PCRA court’s

decision will be upheld if it is supported by the record and free of legal error.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

      Under the PCRA, any PCRA petition, “shall be filed within one year of

the date the judgment [of sentence] becomes final.”               42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence becomes final “at the conclusion of

direct review, including discretionary review in the Supreme Court of

Pennsylvania, or at the expiration time for seeking the review.”             Id.

§ 9545(b)(3).

      Morales’s judgment of sentence became final on January 11, 2006,

when the time to appeal to the Pennsylvania Superior Court expired. See

Pa.R.A.P. 903(a). Thus, Morales had until January 11, 2007, to file a timely



                                   -2-
J-S39038-15


PCRA.   The current Petition, which was filed on July 7, 2014, is facially

untimely. See 42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the three exceptions set

forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the

timeliness requirement, the Petitioner must plead and prove: 1) the failure

to raise the claim was the result of government interference; 2) the facts

upon which the claim is predicated were unknown and could not have been

discovered with due diligence; or 3) the right asserted is a Constitutional

right recognized by the Supreme Court of the United States or the Supreme

Court of Pennsylvania after the time period provided in the section, and the

court has held that it applies retroactively. Id. Any petition invoking one of

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

been presented.” Id. § 9545(b)(2).

      Here, Morales directs our attention to the United States Supreme

Court’s decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),

invoking the exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), a newly recognized

constitutional right. Brief for Appellant at 7. In Alleyne, the Supreme Court

held that any fact that increases the sentence for a given crime must be

submitted to the jury and found beyond a reasonable doubt. Alleyne, 133

S. Ct. at 2155.   Morales argues that the trial court imposed a mandatory

minimum sentence in violation of Alleyne. Brief for Appellant at 7-8.



                                  -3-
J-S39038-15


      Our review of the written sentencing order and the sentencing hearing

discloses that the trial court did not impose a mandatory minimum sentence.

For all three counts, the trial court imposed a sentence of 30-60 months in

prison, which is within the standard range of the Pennsylvania sentencing

guidelines. See N.T., 12/12/05, at 10-11.

      Even if the trial court had imposed a mandatory minimum sentence,

Morales’s PCRA Petition invoking the exception at section 9545(b)(1)(iii) was

nevertheless untimely.    Alleyne was decided on June 17, 2013.       Morales

filed his PCRA Petition on July 7, 2014, well over sixty days after the date

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

also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)

(stating that “[w]th regard to an after-recognized constitutional right, this

Court has held that the sixty-day period begins to run upon the date of the

underlying judicial decision.”).1

      Further, the rule established in Alleyne does not apply retroactively.

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

(stating that neither the United States Supreme Court nor the Pennsylvania

Supreme Court has held that Alleyne applies retroactively where the


1
  We note that Morales also cites to Commonwealth v. Wolfe, 106 A.3d
800 (Pa. Super. 2014), wherein this Court held that the sentencing scheme
under Pa.C.S.A. § 9718 is unconstitutional under Alleyne.            Brief for
Appellant at 8. However, Morales’s reliance on this court’s decision in Wolfe
is misplaced because the third timeliness exception only applies to
constitutional rights recognized by the Pensylvania Supreme Court or United
States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(1)(iii).


                                    -4-
J-S39038-15


judgment of sentence has become final); see also id. (stating that while

Alleyne claims go to the legality of the sentence, courts cannot review a

legality claim where it does not have jurisdiction).   Accordingly, Morales

failed to meet the requirements of the third timeliness exception. Thus, the

PCRA court properly denied Morales’s PCRA Petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




                                -5-
