J-A10044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO RIVERA-MONTANEZ

                            Appellant                   No. 834 MDA 2014


                  Appeal from the PCRA Order April 24, 2014
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000749-2010


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED APRIL 22, 2015

        Appellant Francisco Rivera-Montanez appeals from the order of the

Cumberland County Court of Common Pleas dismissing as untimely his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§ 9541 et seq. We affirm.

        On January 25, 2011, a jury convicted Appellant of two counts of

possession with intent to deliver a controlled substance (“PWID”) and one

count of criminal conspiracy.1          On February 1, 2011, the Commonwealth

filed notice of its intent to seek a mandatory minimum sentence pursuant to




____________________________________________


1
    35 Pa.C.S. § 780-113(a)(30), 18 Pa.C.S. § 903(a)(1), respectively.
J-A10044-15



18 Pa.C.S. § 7508(a)(2).2         On March 22, 2011, the trial court sentenced

Appellant to an aggregate sentence of seven-to-ten years’ imprisonment.3

____________________________________________


2
    18 Pa.C.S. § 7508(a)(2) provides:

          (a) General rule.--Notwithstanding any other provisions
          of this or any other act to the contrary, the following
          provisions shall apply:

          ...

          (2) A person who is convicted of violating section
          13(a)(14), (30) or (37) of The Controlled Substance, Drug,
          Device and Cosmetic Act where the controlled substance or
          a mixture containing it is classified in Schedule I or
          Schedule II under section 4 of that act and is a narcotic
          drug shall, upon conviction, be sentenced to a mandatory
          minimum term of imprisonment and a fine as set forth in
          this subsection:

          ...

          (ii) when the aggregate weight of the compound or
          mixture containing the substance involved is at least ten
          grams and less than 100 grams; three years in prison and
          a fine of $15,000 or such larger amount as is sufficient to
          exhaust the assets utilized in and the proceeds from the
          illegal activity; however, if at the time of sentencing the
          defendant has been convicted of another drug trafficking
          offense: five years in prison and $30,000 or such larger
          amount as is sufficient to exhaust the assets utilized in and
          the proceeds from the illegal activity; and

          (iii) when the aggregate weight of the compound or
          mixture containing the substance involved is at least 100
          grams; five years in prison and a fine of $25,000 or such
          larger amount as is sufficient to exhaust the assets utilized
          in and the proceeds from the illegal activity; however, if at
          the time of sentencing the defendant has been convicted of
          another drug trafficking offense: seven years in prison and
          $50,000 or such larger amount as is sufficient to exhaust
(Footnote Continued Next Page)


                                           -2-
J-A10044-15



        On April 21, 2011, Appellant filed a notice of appeal.      This Court

affirmed the judgment of sentence on May 11, 2012. Appellant did not file a

petition for allowance of appeal with the Supreme Court of Pennsylvania.

        On July 31, 2012, Appellant filed a pro se PCRA petition.    The PCRA

court appointed counsel, who filed an amended petition on November 16,

2012.     On December 10, 2012, the trial court held a hearing and, on

February 11, 2013, it denied the petition.        On March 13, 2013, Appellant

filed a timely notice of appeal. This Court affirmed the denial of the PCRA

petition on November 18, 2013.

        On December 26, 2013, Appellant filed the instant PCRA petition, his

second.     The PCRA court appointed the same counsel who represented

Appellant for his first PCRA petition. Counsel filed a Turner/Finley4 letter

and a request for leave to withdraw as court-appointed PCRA counsel. On

March 20, 2014, the PCRA court granted counsel’s request to withdraw. On

March 27, 2014, the PCRA court issued notice of its intent to dismiss the


                       _______________________
(Footnote Continued)

          the assets utilized in and the proceeds from the illegal
          activity.
3
   The court sentenced Appellant to five-to-ten years’ imprisonment for the
first PWID count, seven-to-ten years’ imprisonment for the second PWID
count, and five-to-ten years’ imprisonment for the conspiracy count. N.T.,
3/22/2011, at 3-4. All sentences were concurrent to each other. Id. at 4.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa.1988)                           and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).




                                            -3-
J-A10044-15



PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal

Procedure 907.      On April 8, 2014, Appellant filed a response to the PCRA

court’s notice and, on April 24, 2014, the PCRA court dismissed the PCRA

petition.

       On April 30, 2014, Appellant filed a timely notice of appeal. On August

28, 2014, the PCRA court issued its opinion pursuant to Pennsylvania Rule of

Appellate Procedure 1925(a).

       Appellant raises the following issue for our review:

            Whether the PCRA court erred in dismissing Appellant’s
            second PCRA petition alleging the sentence imposed is
            illegal and unconstitutional because it increased the
            maximum beyond the statutory range based on facts the
            Commonwealth failed to prove by a preponderance of the
            evidence without a hearing.

Appellant’s Brief at 3.5



____________________________________________


5
   Although Appellant’s statement of questions presented maintains the
sentence imposed by the trial court exceeded the statutory maximum, his
brief argues the sentence was unconstitutional because the trial court
imposed a mandatory minimum. Appellant’s Brief at 7-10. Because the
sentenced imposed is not beyond the statutory maximum, see 35 Pa.C.S. §
780-113(f), and because Appellant’s brief argues the mandatory minimum
imposed by the trial court is unconstitutional, we interpret Appellant’s issue
presented to challenge his mandatory minimum sentence.

Further, to the extent Appellant maintains the imposition of the mandatory
minimum sentence caused his sentence to exceed the standard sentencing
guidelines range, our finding that Appellant’s PCRA petition is untimely, and
that he cannot challenge the mandatory minimum imposed, precludes
review of this issue.



                                           -4-
J-A10044-15



      Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is final “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.”             42

Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The

late filing of a petition will be excused if a petitioner alleges and proves:

            (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



                                      -5-
J-A10044-15


              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).        When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant’s judgment of conviction became final on June 11, 2012,

when the time to seek review by the Supreme Court of Pennsylvania

expired.6 He had one year from that date, i.e., until June 11, 2013, to file a

timely PCRA petition. Therefore, his current petition, filed on December 26,

2013, is facially untimely.

       Appellant alleges two of the PCRA time-bar exceptions apply, the new

constitutional-right exception and the governmental-interference exception.

       Appellant maintains the mandatory minimum sentences imposed by

the trial court are unconstitutional pursuant to Alleyne v. United States, –

–– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and claims Alleyne

established a new constitutional rule that should be applied retroactively to

cases on collateral review. Appellant’s Brief at 7-9. He further maintains he

did not file his PCRA petition within 60 days of the issuance of the Alleyne



____________________________________________


6
   This Court affirmed Appellant’s judgement of sentence on May 11, 2012.
Appellant had thirty days from that date to appeal to our Supreme Court.
Pa.R.A.P. 1113(a). Thirty days from May 11, 2012 was Sunday, June 10,
2012. Appellant, therefore, had until Monday, June 11, 2012 to file a timely
filed a petition for allowance of appeal to our Supreme Court. See 1 Pa.C.S.
§ 1908; Pa.R.A.P.107.



                                           -6-
J-A10044-15



opinion due to government interference, reasoning the Commonwealth did

not inform him that his sentence was unconstitutional. Id. at 9.

        “[A] new rule of constitutional law is applied retroactively to cases on

collateral review only if the United States Supreme Court or our Supreme

Court specifically holds it to be retroactively applicable to those cases.”

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

Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super.2011)).

        “In Alleyne, the Supreme Court [of the United States] held that ‘facts

that increase mandatory minimum sentences must be submitted to the jury’

and must be found beyond a reasonable doubt.”             Miller, 102 A.3d at 994

(quoting Alleyne, 133 S.Ct. at 2163).            Neither the Supreme Court of the

United States nor our Supreme Court, however, has found Alleyne to apply

retroactively to cases on collateral review. Id. at 995. Appellant, therefore,

fails to establish the new constitutional-right exception to the PCRA time-

bar.7     See id. (appellant failed to establish new constitutional-right

exception based on Alleyne).

        Because Appellant filed his PCRA petition after the PCRA time-bar

expired and because Appellant fails to establish any exception to the time-



____________________________________________


7
  Because we find Appellant does not establish Alleyne created a new
constitutional right that applied retroactively, we need not address his claim
that government interference prevented him from filing his PCRA petition
within 60 days of the issuance of the Alleyne opinion.



                                           -7-
J-A10044-15



bar, the PCRA court properly dismissed Appellant’s PCRA petition as

untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2015




                               -8-
