J-S24041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JULIAN FERNANDEZ                        :
                                         :
                   Appellant             :   No. 2423 EDA 2018

             Appeal from the PCRA Order Entered July 18, 2018
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0006474-2007


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 11, 2019

      Appellant Julian Fernandez appeals from the order of the Court of

Common Pleas of Montgomery County denying his second petition pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546 as

untimely filed. We affirm.

      In July 2007, Appellant was placed under arrest after officers executed

a search warrant of his residence in Blue Bell, Pennsylvania and discovered

baggies containing approximately 4 pounds of marijuana, nine marijuana

plants, various assortments of prescription pills, two handguns, $12,164.00 in

U.S. currency, scales, packaging materials, and other drug paraphernalia.

      After a bench trial, Appellant was convicted of two counts of Possession

with Intent to Deliver a Controlled Substance (PWID), possession of a

controlled substance, and possession of drug paraphernalia. On November 9,

2009, Appellant was sentenced to five to ten years’ imprisonment to be

____________________________________
* Former Justice specially assigned to the Superior Court.
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followed by five years’ probation.     The trial court applied the five-year

mandatory minimum sentence provisions set forth in 42 Pa.C.S.A. § 9712.1

(sentences for certain drug offenses committed with firearms). Appellant filed

a timely post-sentence motion, which was subsequently denied. On October

12, 2011, this Court affirmed the judgment of sentence and on May 24, 2012,

the Supreme Court denied Appellant’s petition for allowance of appeal.

      On September 24, 2014, Appellant filed his first pro se PCRA petition.

The PCRA court appointed Appellant counsel, who subsequently filed a no-

merit letter and a petition to withdraw pursuant to Commonwealth v.

Finley, 550 A.2d 213 (Pa.Super. 1988). On June 11, 2015, the PCRA court

issued notice of its intent to dismiss the petition without a hearing pursuant

to Pa.R.Crim.P. 907 and also allowed counsel to withdraw.      On October 5,

2015, the PCRA court ultimately denied the petition as untimely filed.     On

December 30, 2016, this Court affirmed the PCRA court’s dismissal of

Appellant’s petition.

      On February 22, 2017, Appellant filed the instant pro se petition,

suggesting his mandatory minimum sentence was illegal pursuant to Alleyne

v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2155 (2013). On March 31,

2017, the PCRA court issued notice of its intent to dismiss pursuant to Rule

907. On July 18, 2018, the PCRA court dismissed the instant petition. This

timely appeal followed.

      As an initial matter, we must determine whether Appellant’s PCRA

petition is untimely.     It is well-established that “the PCRA's timeliness

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requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.

2011) (citations omitted). Generally, a PCRA petition “including a second or

subsequent 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 or the expiration of the time

for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of the three exceptions

enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii), which include: (1) the

petitioner’s inability to raise a claim as a result of governmental interference;

(2) the discovery of previously unknown facts or evidence that would have

supported a claim; or (3) a newly-recognized constitutional right that has been

held to apply retroactively by the Supreme Court of the United States or the

Supreme Court of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      As noted above, the trial court sentenced Appellant on November 9,

2009, this Court affirmed the judgment of sentence on October 12, 2011, and

the Supreme Court denied allowance of appeal on May 24, 2012. Appellant

did not seek further review in the Supreme Court of the United States. As a

result, Appellant’s judgment of sentence became final on August 22, 2012,

after the expiration of the ninety-day period in which he was allowed to seek

review in the U.S. Supreme Court. See U.S. Sup.Ct. R. 13. As such, Appellant

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needed to file his PCRA petition by August 22, 2013. As Appellant filed the

instant petition on February 22, 2017, this petition is facially untimely.

      Appellant continues to attempt to invoke the timeliness exception under

Section 9545(b)(1)(iii), alleging his illegal sentence claim is based on a newly

recognized constitutional right expressed in Alleyne. In that decision, the

Supreme Court of the United States held that “[a]ny fact that, by law,

increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103,

133 S. Ct. at 2155.

      However, our Supreme Court held that Alleyne does not apply

retroactively to collateral attacks upon mandatory minimum sentences

advanced in PCRA proceedings. Commonwealth v. Washington, 636 Pa.

301, 316, 142 A.3d 810, 820 (2016). We also emphasize that this Court has

also rejected the argument that “that a mandatory sentencing statute

rendered illegal by Alleyne is void ab initio thereby rendering any sentence

imposed thereunder invalid.” Commonwealth v. Ciccone, 152 A.3d 1004,

1007–1008 (Pa.Super. 2016) (en banc).

      Accordingly, as Appellant failed to plead and prove any of the timeliness

exceptions provided in Section 9545, the PCRA court correctly dismissed

Appellant’s untimely petition, which it had no jurisdiction to review.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019




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