J-S85024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ALBERTO CASTILLO, JR.

                        Appellant                  No. 1170 EDA 2016


                Appeal from the PCRA Order March 14, 2016
              in the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000609-1984


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                     FILED DECEMBER 19, 2016

     Appellant, Alberto Castillo, Jr., appeals from the March 14, 2016 order

denying, as untimely, his fourth petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The relevant facts and procedural history of this appeal are as follows.

On January 29, 1985, a jury found Appellant guilty of first degree murder.

Appellant was sentenced to life imprisonment on March 16, 1990. On April

2, 1991, this Court affirmed his judgment of sentence, and Appellant did not

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

Appellant filed three PCRA petitions, the first in 1991, the second in 1999,

and the third in 2011. All of Appellant’s petitions and subsequent appeals

were denied.
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        On February 22, 2016, Appellant pro se filed an untimely petition

seeking PCRA relief. On February 23, 2016, the PCRA court sent Appellant

notice pursuant to Pa.R.Crim.P. 907 that his petition would be dismissed

within twenty days. Appellant filed a timely response. On March 14, 2016,

the PCRA court dismissed Appellant’s petition.

        Appellant timely appealed and simultaneously filed a statement

pursuant to Pa.R.A.P. 1925(b). The PCRA court issued a responsive opinion.

        Herein, Appellant presents three issues for our review:

        1. The factors that triggered [Appellant’s] mandatory life
        sentence violates due process of law.

        2. Trial court lacked statutory authorization to sentence the
        defendant to a mandatory life sentence, and the sentencing
        order was invalid.

        3. Montgomery v. Louisiana1 gave retroactive effect to
        substantial rules of constitutional law, [namely] Alleyne v.
        United States,2 which held facts other than prior convictions
        that trigger the mandatory term has to be treated as if it were
        an “element” of an enhanced offense such that the defendant
        has the right for the enhancement factor to be included in the
        information, decided by a jury and proved beyond a reasonable
        doubt.

Appellant’s Brief at 3 (unnecessary capitalization omitted and internal

citations corrected).




____________________________________________


1
    Montgomery v. Louisiana, 136 S. Ct. 718 (2016).
2
    Alleyne v. United States, 135 S. Ct. 1251 (2013).



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     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. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

     We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded   in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

     (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 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 these

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

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

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       Appellant’s petition is untimely.3        Nevertheless, Appellant asserts his

claim is based upon a newly recognized constitutional right held to apply

retroactively. See Appellant’s Brief at 7 (citing in support Alleyne, 133 S.

Ct. at 2155 (concluding that “[a]ny fact that … increases the penalty for a

crime is an ‘element’ that must be submitted to the jury and found beyond a

reasonable doubt”)).         Moreover, Appellant asserts, this new rule must be

applied retroactively, thus entitling him to collateral relief.          Id. (citing in

support Montgomery v. Louisiana, 136 S. Ct. 718 (2016)).

       Appellant’s reliance upon Montgomery to establish the retroactive

applicability of Alleyne is misplaced.          In Montgomery, the United States

Supreme Court recognized that state collateral review courts must give

retroactive    effect   to   a   new,    substantive   rule   of   constitutional   law.

Montgomery, 136 S. Ct. at 729.                 However, the Pennsylvania Supreme

Court has determined that the rule announced in Alleyne was neither a

substantive nor a “watershed” procedural rule and, therefore, did not apply

retroactively to cases pending on collateral review.               Commonwealth v.



____________________________________________


3
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 2, 1991, at the expiration of his thirty days to petition
for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S.
§ 9545(b)(3) (a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).
Appellant’s current petition, filed February 22, 2016, was filed almost twenty
four years late.



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Washington, 142 A.3d 810, 820 (Pa. 2016), see also Commonwealth v.

Riggle, 119 A.3d 1058, 1064-67 (Pa. Super. 2015) (same).

      Finally, Appellant argues that his mandatory conviction violated due

process of law and his sentencing order is invalid, specifically because it

indicates “the sentencing judge ‘did not use any’ statute to impose the

defendant’s life sentence, therefor [sic] the judge did not possess the

statutory authorization to impose such a sentence.”    Appellant’s Brief at 8

(unnecessary capitalization omitted).     Appellant avers that the judge

“selected” the charges for sentencing purposes and that 18 Pa.C.S. § 2501,

defining the offense of criminal homicide, does not impose a penalty or

punishment and thus his sentence is illegal. Id. at 6-8. However, Appellant

has not pleaded a timeliness exception that would allow him to raise this

issue in an untimely petition.

      Appellant’s petition is untimely, and he has not satisfied a timeliness

exception to the requirements of the PCRA. Consequently, the PCRA court

was without jurisdiction to review the merits of Appellant’s claim, and

properly dismissed his petition. See Ragan, 932 A.2d at 1170.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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