J-S47008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

EMILIO NIEVES,

                          Appellant                 No. 358 MDA 2015


            Appeal from the PCRA Order entered February 6, 2015,
               in the Court of Common Pleas of Lebanon County,
            Criminal Division, at No(s): CP-38-CR-0000563-2002 &
                            CP-38-CR-0001621-2001


BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED JULY 24, 2015

      Emilio Nieves (“Appellant”) appeals from the order denying his petition

for post-conviction relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the pertinent procedural history as

follows:

              In Action No. 1621-2001, [Appellant] was charged with
           [multiple drug and drug-related charges]. In Action No.
           [563-2002], he was charged with [two counts of
           possession with intent to deliver]. On January 6, 2003,
           [Appellant] entered a guilty plea in No. 563 and on
           January 7, 2003, he entered a plea of nolo contendere to
           the charges at No. 1621. On January 10, 2003, this Court
           imposed an aggregate sentence of fourteen (14) to thirty
           (30) years for these actions. [Appellant] filed a direct
           appeal to the Superior Court of Pennsylvania challenging



*Retired Senior Judge assigned to the Superior Court.
J-S47008-15


        the discretionary aspects of his sentence. The Superior
        Court affirmed by Order of June 3, 2004. [Appellant did
        not file a petition for allowance of appeal to our Supreme
        Court.]

            On April 13, 2005, [Appellant] filed [PCRA petitions] in
        both actions. We dismissed those petitions without a
        hearing by Order of February 7, 2008. On March 5, 2008,
        [Appellant] filed a [pro se] Notice of Appeal of that Order.
        By Order of May 26, 2009, the Superior Court vacated the
        Order denying PCRA relief and remanded for us to
        reinstate [Appellant’s] appellate rights in No. 1621 and to
        conduct an evidentiary hearing in No. 563. By Order of
        May 27, 2009, we appointed counsel to represent
        [Appellant], reinstated his appellate rights in No. 1621 and
        scheduled an evidentiary hearing for No. 563. [Appellant]
        filed a Notice of Appeal in No. 1621 on June 26, 2009 and
        the Superior Court issued an Order affirming the judgment
        of sentence in No. 1621 on February 12, 2010. We
        conducted an evidentiary hearing in No. 563 on January
        26, 2010 and on July 12, 2010, we dismissed [Appellant’s]
        [PCRA] Petition in that action.

           On February 14, 2012, [Appellant] filed a Motion for
        Modification of Sentence Nunc Pro Tunc in both actions
        which we denied on February 17, 2012. On June 13,
        2014,      he    filed    a    Motion      for     Sentence
        Correction/Modification requesting collateral relief in both
        actions. We appointed counsel to represent [Appellant]
        and issued a Rule upon the Commonwealth to show cause
        why the requested relief should not be granted. The
        Commonwealth responded on July 21, 2014. On February
        3, 2015, [Appellant] filed a counseled amended PCRA
        Petition [supplementing Appellant’s February 14, 2012
        motion], which we denied by Order of February 6, 2015.
        The Commonwealth responded to that Petition on February
        12, 2015.

PCRA Court Opinion, 4/20/15, at 1-3 (footnotes omitted). This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.



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      Appellant raises the following issue:

         1. WHETHER [THE] TRIAL COURT ERRED WHEN IT
         IMPOSED AN ILLEGAL SENTENCE UPON [APPELLANT] IN
         LIGHT OF THE HOLDING IN ALLEYNE V. UNITED
         STATES, 133 S.Ct. 2151, 186 L.Ed.2d 314, 81 USLW 4444
         (2013)?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order dismissing 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. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the issue raised by Appellant in his pro se brief, we

must first determine whether the PCRA court properly determined that

Appellant’s latest PCRA petition was untimely.

       The   timeliness     of    a   post-conviction     petition     is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor


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the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).




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      At No. 563, Appellant’s judgment of sentence became final on or about

July 5, 2004, after the expiration of time for filing an appeal to our Supreme

Court. See 42 Pa.C.S.A. § 9545(b)(3). At No. 1621, Appellant’s judgment

of sentence became final on March 13, 2012, after the expiration of the time

for filing an appeal to our Supreme Court. Id. Thus, in order for his PCRA

petition to be timely at No. 563, Appellant would have had to file it by July 5,

2005. In order to be timely at No. 1621, Appellant would have had to file

his latest PCRA petition by March 13, 2013. Because Appellant did not file

his present petition involving both matters until June 13, 2014, it is untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated time-bar exceptions applies. See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999).

      Appellant has failed to properly raise and prove the applicability of any

of the exceptions to the PCRA’s time restrictions. Appellant argues:

            [Appellant] avers that Alleyne established a new
         constitutional right and, thereby, relieves him of the time
         limitations set forth by the Act pursuant to § 945(b)(1)(iii).
         See also, Commonwealth v. Newman, [99 A.3d 86 (Pa.
         Super. 2014) (en banc)].

             Furthermore, [Appellant] has been diligently seeking
         modification of his sentence throughout his time of
         incarceration. However, his sentence has always been
         affirmed.      Since Alleyne has recognized a new
         constitutional right, [Appellant’s] rights should now be
         reinstated in the interest of justice.

Appellant’s Brief at 13.




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J-S47008-15



       Initially, our review of Appellant’s pro se June 13, 2014 motion, as well

as    counsel’s      amended     PCRA   petition,   supports   the    Commonwealth’s

assertion that Appellant is improperly raising the PCRA’s time bar exception

for   the    first   time   on   appeal.     See    generally,       Pa.R.A.P.   302(a);

Commonwealth Brief at 9.

       Nevertheless, the PCRA court correctly explained:

               [Appellant] now claims that the aggregate sentence
            imposed in these actions on October 10, 2003 was illegal
            and that he is entitled to collateral relief on the basis of the
            United [States] Supreme Court’s subsequent holding in
            Alleyne v. United States, 133 S.Ct. 2151 (2013). In
            that case, the Supreme Court held that any fact that
            increases a mandatory minimum sentence is an element
            [of the crime] that must be submitted to a jury.

                                           ***

               The holding of Alleyne is applied retroactively only to
            cases which were pending on direct appeal at the time it
            was rendered. Commonwealth v. Newman, 99 A.2d 86
            (Pa.Super. 2014).

PCRA Court Opinion, 4/20/15, at 3-5 (footnote omitted).

       The PCRA court then quoted extensively from this Court’s decision in

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), in which we

noted, “neither our Supreme Court, nor the United States Supreme Court

have held that Alleyne applies retroactively to cases in which the judgment

of sentence has become final.” Miller, 102 A.3d at 995. The PCRA court

thereafter concluded:

              The holding of Alleyne is inapplicable to the sentence
            imposed in these matters. Both judgments of sentence


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J-S47008-15


         had become final here, as neither of these actions was
         pending on direct appeal at the time that [the Alleyne]
         decision was entered.       Thus, [Appellant’s] claim for
         collateral relief was untimely and we dismissed
         [Appellant’s] PCRA Petition for that reason.

PCRA Court Opinion, 4/20/15, at 8.

      Our review of the record supports the PCRA court’s conclusion that it

lacked jurisdiction to consider Appellant’s PCRA petition.   Accordingly, we

affirm the PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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