J-S33004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VICTOR MALDONADO-RIVERA,

                            Appellant                No. 2050 MDA 2016


           Appeal from the PCRA Order Entered November 23, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000088-2006


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 06, 2017

        Appellant, Victor Maldonado-Rivera, appeals pro se from the post-

conviction court’s November 23, 2016 order dismissing, as untimely, his

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

        The facts of Appellant’s case are unnecessary to our disposition of his

appeal.     The procedural history of his underlying convictions and direct

appeal were previously summarized by this Court as follows:

              On May 25, 2006, Appellant entered into an open guilty
        plea to two counts of involuntary deviate sexual intercourse, one
        count of aggravated assault, and one count of indecent assault.
        Sentencing was deferred pending a Megan’s Law evaluation by
        the Sexual Offenders Assessment Board. On October 4, 2006,
        the trial court determined that Appellant was a sexually violent
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S33004-17


        predator, and sentenced him to an aggregate term of fourteen
        and one-half to twenty-nine years of imprisonment, plus a five-
        year probationary term. The trial court denied Appellant’s
        subsequently filed post-sentence motion. Appellant filed a direct
        appeal to this Court. In an unpublished memorandum filed on
        March 11, 2009, this Court affirmed Appellant’s judgment of
        sentence. Commonwealth v. Maldonado-Rivera, 972 A.2d
        557 (Pa. Super. 2009). Our Supreme Court denied Appellant’s
        petition for allowance of appeal on August 26, 2009.
        Commonwealth v. Maldonado-Rivera, 983 A.2d 727 (Pa.
        2009).

Commonwealth v. Maldonado-Rivera, No. 215 MDA 2012, unpublished

memorandum at 1-2 (Pa. Super. filed June 12, 2012).

        Appellant thereafter filed a timely PCRA petition (which was styled as a

petition for writ of habeas corpus), arguing that he was denied the right to

counsel at his preliminary arraignment.         That petition was denied by the

PCRA court without the appointment of counsel.                On appeal, this Court

remanded, directing that counsel be appointed.            See id.       On remand,

appointed PCRA counsel filed a ‘no-merit’ letter and petition to withdraw

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988),

and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). The PCRA court

ultimately granted counsel’s petition to withdraw and denied Appellant’s

petition. This Court affirmed on appeal. Commonwealth v. Maldonado-

Rivera, 106 A.3d 166 (Pa. Super. 2014) (unpublished memorandum).

        Appellant then filed another pro se PCRA petition on April 13, 2015,

this time challenging the legality of his sentence under Alleyne v. United

States, 133 S.Ct. 2151 (2013).            The PCRA court denied that petition as

being    untimely   filed,   and   this    Court   affirmed     on   appeal.   See


                                          -2-
J-S33004-17



Commonwealth v. Maldonado-Rivera, 141 A.3d 593 (Pa. Super. 2016)

(unpublished memorandum).

      On July 5, 2016, Appellant filed the petition underlying the present

appeal, which he titled, “Motion to Correct[] Illegal And Unconstitutional

Sentence ‘Nunc Pro Tunc.’”         Therein, Appellant argued that several

mandatory minimum sentences imposed in his case under 42 Pa.C.S. §

9718(a)(3) were illegal because that provision of section 9718 was not

added until November of 2004, which was after he committed the offenses

triggering the application of those sentences. On September 19, 2016, the

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss

Appellant’s petition without a hearing on the basis that it was untimely filed.

Appellant filed a pro se response, but the court dismissed his petition by

order entered on November 23, 2016.

      Appellant filed a timely, pro se notice of appeal, and he also timely

complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.

The PCRA court filed a Rule 1925(a) opinion on February 8, 2017. Herein,

Appellant states two issues for our review:

      A. Did the sentencing court err when it sentenced [Appellant],
      illegally, under a sentencing statute that did not exist at the time
      of the offense, violating the ex post facto laws of the Pa. and the
      U.S. [C]onstitutions, and did counsel fail to inform [A]ppellant
      that the court did not have the authority to sentence [A]ppellant
      under the amended sentencing statute rendering him ineffective
      for failing to perfect a direct appeal following a [j]udgment of
      sentence?

      B. Whether the sentencing court can waive the ex post facto
      violation issue as untimely[?]

                                     -3-
J-S33004-17



Appellant’s Brief at 1 (unnumbered).

      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

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

1264, 1267 (Pa. 2007).     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



                                     -4-
J-S33004-17


            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).

      Here, Appellant’s judgment of sentence became final on November 24,

2009, ninety days after our Supreme Court denied his petition for allowance

of appeal from this Court’s decision affirming his judgment of sentence. See

42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final

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

the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.

1998) (directing that under the PCRA, petitioner’s judgment of sentence

becomes final ninety days after our Supreme Court rejects his or her petition

for allowance of appeal since petitioner had ninety additional days to seek

review with the United States Supreme Court). Accordingly, Appellant had

until November 24, 2010, to file a timely PCRA petition, making his petition

filed in July of 2016 facially untimely.      Thus, for this Court to have

jurisdiction to review the merits of Appellant’s claims, he must prove that he

meets one of the exceptions to the timeliness requirements set forth in 42

Pa.C.S. § 9545(b).

      Instantly, Appellant does not present any argument that he meets a

timeliness exception. Instead, he seemingly relies on the fact that legality of

sentencing issues cannot be waived; while that is true, such claims must

first satisfy the PCRA’s time limits. See Commonwealth v. Fahy, 737 A.2d

                                     -5-
J-S33004-17



214, 223 (Pa. 1999) (holding that claims challenging the legality of sentence

are subject to review within PCRA, but must first satisfy the PCRA’s time

limits). Additionally, Appellant’s suggestion that his trial/appellate attorneys

acted ineffectively by not raising this legality of sentence issue also do not

meet any timeliness exception.           See Commonwealth v. Wharton, 886

A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective

assistance of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA.”) (citations omitted).

       Because Appellant has failed to plead and prove the applicability of any

timeliness exception to his claims, the PCRA court did not err in dismissing

his untimely petition.1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017

____________________________________________


1
  We also point out that, even if Appellant had pled and proven the
applicability of an exception under section 9545(b)(1)(i)-(iii), he would be
unable to meet the 60-day requirement of section 9545(b)(2), as he could
have immediately discovered and presented his legality of sentence claim at
the time those ostensibly illegal sentences were imposed in 2006.
Therefore, Appellant’s petition was properly denied for this reason as well.



                                           -6-
