J-S30042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JORGE LUIS PORTALATIN

                            Appellant                  No. 232 EDA 2015


                Appeal from the PCRA Order December 31, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002207-2006


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JUNE 04, 2015

        Appellant Jorge Luis Portalatin appeals from the order of the

Northampton 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 June 11, 2007, Appellant pled guilty to one count of aggravated

indecent assault of a person less than thirteen years of age and two counts

of endangering the welfare of children.1       On November 2, 2007, the trial

court found Appellant to be a sexually violent predator and sentenced him to

an aggregate term of 10 to 24 years’ imprisonment.2          Appellant filed a
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1
    18 Pa.C.S. §§ 3125(a)(7), 4304(a), respectively.
2
  The trial court sentenced Appellant to 18 to 84 months’ imprisonment for
the first endangering the welfare of children count; 42 to 84 months’
(Footnote Continued Next Page)
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timely notice of appeal. The appeal was discontinued at his request on June

9, 2008.

       On April 13, 2009, Appellant filed a PCRA petition.      The PCRA court

appointed counsel and held an evidentiary hearing.           On September 24,

2009, the PCRA court denied the petition. This Court affirmed the order on

April 27, 2011.

       On June 28, 2012, Appellant filed a second PCRA petition. The PCRA

court appointed counsel, who filed a motion to withdraw and a no-merit

letter pursuant to Turner3 and Finley.4 The PCRA court issued a notice of

its intent to dismiss the petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907.            On November 9, 2012, the PCRA court

dismissed Appellant’s petition and, on January 18, 2013, it granted counsel’s

motion to withdraw. This Court affirmed the dismissal on August 14, 2013.

On February 10, 2014, the Supreme Court of Pennsylvania denied

Appellant’s petition for allowance of appeal.

       On November 12, 2014, Appellant filed a “Petition for Sentence

Reduction,” which is the petition at issue in this appeal.      The PCRA court

                       _______________________
(Footnote Continued)

imprisonment for the second endangering the welfare of children count; and
60 to 120 months’ imprisonment for the aggravated indecent assault count.
The court imposed the sentences consecutively.
3
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
4
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).



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construed this petition as Appellant’s third PCRA petition. On December 5,

2014, it filed a notice of its intent to dismiss the petition without a hearing

pursuant to Rule 907. On December 22, 2014, Appellant filed a response to

the notice. On December 31, 2014, the PCRA court dismissed the petition.

On January 13, 2015, Appellant filed a timely notice of appeal and, at the

same time, filed a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On January

15, 2015, the PCRA court issued a Rule 1925(a) statement incorporating as

its statement of reasons the December 8, 2014 notice of its intent to dismiss

the PCRA petition without a hearing.

      Appellant raises the following issues on appeal:

         I. The sentencing judge found aggravating factors which
         did not relate to prior conviction[s], the factors are
         essential to imposition of level of punishment that
         Appellant received, these facts had not been found by a
         jury nor proven beyond a reasonable doubt, thus violating
         Appellant’s 6th Amendment right to [a] jury trial and
         violating due-process as guaranteed by the 14th
         Amendment to the [United States] Constitution.

         II. The trial court arbitrarily determined Appellant’s
         “Petition for Sentence Reduction” to be a PCRA Petition,
         the court had applied [the PCRA statute] and its rules as
         reasons to support its decision to dismiss Appellant’s
         “Petition for Sentence Reduction” by determining it to be a
         PCRA petition that was time barred.




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Appellant’s Brief at 10 (“Statement of Questions Presented”).5 We will first

address Appellant’s claim the PCRA court erred in treating his petition for

sentence reduction as a PCRA petition, because resolution of this claim

affects this Court’s jurisdiction to address the merits of his first claim.

       The PCRA court properly treated Appellant’s petition for sentence

reduction as his third PCRA petition and dismissed the petition as untimely.

       The PCRA provides: “The action established in this subchapter shall be

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose that exist when

this subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S. § 9542.       If the petitioner’s claim is cognizable under the PCRA, a

petitioner “may only obtain relief under the PCRA.”               Commonwealth v.

Descardes, 101 A.3d 105, 108 (Pa.Super.2014) (quoting Commonwealth

v. Pagan, 864 A.2d 1231, 1233 (Pa.Super.2004)) (emphasis deleted).

Claims challenging a petitioner’s sentence are cognizable under the PCRA.

See, e.g., Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super.2013)

(PCRA provides sole means for collateral review of judgment of sentence);

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super.2007) (challenge

to   legality   of   sentence      tied   to   filing   of   timely   PCRA   petition);

Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super.2000) (PCRA is

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5
 Appellant’s Brief is not paginated. All page numbers are supplied by this
Court.



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only vehicle to address legality of sentence after direct appeal, or after time

for filing direct appeal expires).     Accordingly, the PCRA court properly

treated Appellant’s petition for sentence reduction as a third PCRA petition.

      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. 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



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              (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
              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 9, 2008 when

he discontinued his direct appeal.             He had one year from that date, until

June 9, 2009, to file a timely PCRA petition. Therefore, his current petition,

filed on November 12, 2014, is untimely.

       Appellant relies on Alleyne v. United States, --- U.S. ---, 133 S.Ct.

2151, 2158, 186 L.Ed.2d 314 (2013),6 to allege he qualifies for the new-

constitutional-right exception to the PCRA time-bar.              We disagree.    In

Alleyne, the Supreme Court of the United States found “[f]acts that

increase the mandatory minimum sentence are . . . elements and must be

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

U.S. ---, 133 S.Ct. at 2158.        This was an extension of the Apprendi line of

Supreme Court of United States cases.                Commonwealth v. Miller, 102

A.3d 988, 994 (Pa.Super.2014). In Miller, however, this Court found that,

even if Alleyne announced a new constitutional right, “neither our Supreme
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6
 Appellant also cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), and similar cases. Alleyne, however, is the
most recent Supreme Court case cited in support of his argument.



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Court, nor the United States Supreme Court has held that Alleyne is to be

applied retroactively to cases in which the judgment of sentence had become

final.” 102 A.3d at 995. Because the Supreme Court of Pennsylvania and

the Supreme Court of the United States have not held Alleyne applies to

cases on collateral review, Appellant cannot satisfy the new-constitutional-

right exception to the PCRA time-bar.            See 42 Pa.C.S. § 9545(b)(1)(iii);

Miller, 102 A.3d at 995. Further, the Supreme Court of the United States

decided Alleyne on June 17, 2013. Appellant did not file his current petition

until November 12, 2014, which is more than 60 days after June 17, 2013,

the date he could have discovered the claim. See 42 Pa.C.S. § 9545(b)(2)

(“Any petition invoking an exception provided in paragraph (1) shall be filed

within 60 days of the date the claim could have been presented.”);

Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super.2007) (“[w]ith

regard to an after-recognized constitutional right, . . . the sixty-day period

begins to run upon the date of the underlying judicial decision”).7

       Accordingly, Appellant’s PCRA petition is time-barred and he fails to

establish any exception to the PCRA time-bar. The PCRA court did not abuse

its discretion in dismissing the PCRA petition as untimely.
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7
  To the extent Appellant argues his legality of sentence claim cannot be
waived, this argument fails. Although a challenge to the legality of sentence
“is always subject to review within the PCRA, claims must still first satisfy
the PCRA’s time limits or one of the exceptions thereto.” See Infante, 63
A.3d at 365. If a PCRA petition is untimely, the court lacks the jurisdiction
to hear any claim, including a legality of sentence challenge. Id.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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