J-S59004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICKEY SANTOS COLON,

                            Appellant                 No. 1128 EDA 2017


              Appeal from the PCRA Order Entered March 15, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001921-2010


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 24, 2017

        Appellant, Mickey Santos Colon, appeals pro se from the post-

conviction court’s March 15, 2017 order denying, as untimely, his second

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. After careful review, we are compelled to affirm.

        We need not provide a detailed recitation of the facts of Appellant’s

underlying convictions for purposes of this appeal. We only briefly note that,

        Herman McMullen, a confidential informant with a known drug
        history, facilitated the controlled purchase of cocaine from
        [Appellant] on two occasions. A jury convicted [Appellant] of
        two counts of possession with intent to deliver a controlled
        substance and two counts of criminal use of a communication
        facility. The trial court sentenced [Appellant] to an aggregate
        term of 12 to 24 years’ incarceration. On appeal, this Court
        affirmed [Appellant’s] judgment of sentence, and the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      Pennsylvania    Supreme      Court    denied  allocatur. See
      Commonwealth v. Colon, [63 A.3d 817 (Pa. Super. 2012)],
      appeal denied, 67 A.3d 793 (Pa. 2013). [Appellant] filed a
      timely PCRA petition. The PCRA court conducted an evidentiary
      hearing and later dismissed Colon’s petition.

Commonwealth v. Colon, No. 543 EDA 2015, unpublished memorandum

at 1-2 (Pa. Super. filed Sept. 11, 2015) (footnotes omitted). Appellant filed

a timely appeal from the order denying his first PCRA petition, and this Court

affirmed. Id. Our Supreme Court thereafter denied Appellant’s petition for

allowance of appeal. Commonwealth v. Colon, 158 A.3d 66 (Pa. 2016).

      On October 25, 2016, Appellant filed his second pro se PCRA petition,

which underlies the present appeal.    Therein, he argued that a mandatory

minimum sentence      imposed in his case pursuant to 18 Pa.C.S. §

7508(a)(3)(ii) (requiring a mandatory five-year minimum sentence when the

amount of cocaine involved is at least 10 grams but less than 100 grams

and, at the time of sentencing, the defendant has been convicted of another

drug-trafficking offense), is illegal under Alleyne v. United States, 133

S.Ct. 2151, 2163 (2013) (holding that “facts that increase mandatory

minimum sentences must be submitted to the jury” and found beyond a

reasonable doubt).      Appellant also    asserted that the attorney who

represented him in the litigation of his first, timely-filed PCRA petition was

ineffective for not raising a challenge to the legality of his sentence under

Alleyne.

      On February 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition.     Appellant filed a pro se


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response, but on March 13, 2017, the PCRA court issued an order dismissing

his petition. Appellant filed a timely, pro se notice of appeal, and he also

timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         Herein, Appellant

presents one issue for our review: “Whether PCRA counsel was ineffective in

failing to raise the issue that Appellant’s sentence constitutes an illegal

mandatory [sentence] under Alleyne…[?]” Appellant’s Brief at 3.

      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.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).   Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the



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         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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 one of

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

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on August 27,

2013, at the conclusion of the ninety-day time period for seeking review with

the United States Supreme Court.      See 42 Pa.C.S. § 9545(b)(3) (stating

that a judgment of sentence becomes final at the conclusion of direct review

or the expiration of the time for seeking the review); Commonwealth v.

Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the

PCRA, petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court).    Thus, his current petition in October of 2016 is facially

untimely and, for this Court to have jurisdiction to review the merits thereof,


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Appellant must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

     Instantly, Appellant contends that he has met “the timeliness

exceptions outlined in § 9545” because his first PCRA counsel acted

ineffectively by not arguing that Alleyne renders Appellant’s mandatory

minimum sentence illegal. Appellant’s Brief at 6. Appellant stresses that the

rule in Alleyne “was applicable to Appellant[,] whose direct appeal was

pending until August 27, 2013[,]” which was after Alleyne was decided on

June 17, 2013.     Id.   Appellant maintains that his PCRA counsel acted

ineffectively by not asserting that Alleyne applies to Appellant’s case

because his judgment of sentence was not final when Alleyne was decided.

     We are constrained to conclude that Appellant’s argument cannot

overcome the one-year timeliness requirement of the PCRA. We recognize

that this Court has granted post-conviction relief to a petitioner who, like

Appellant, claimed that his sentence was illegal under Alleyne, and whose

judgment of sentence was not final before Alleyne was decided.           See

Commonwealth v. Ruiz, 131 A.3d 54, 59 (Pa. Super. 2015). In Ruiz, the

petitioner filed a timely PCRA petition, and our Court accepted his argument

that Alleyne applied to his case because his judgment of sentence was not

yet final when Alleyne was decided. Id. at 59-60.

     However, in the present case, Appellant’s initial PCRA counsel did not

present such an argument in Appellant’s timely-filed PCRA petition.

Unfortunately for Appellant, he cannot challenge PCRA counsel’s arguable

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ineffectiveness in this regard in his untimely-filed PCRA petition, as “[i]t is

well settled that allegations of ineffective assistance of counsel will not

overcome    the   jurisdictional   timeliness   requirements   of   the   PCRA.”

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations

omitted).

      Additionally, Appellant cannot obtain relief based on his claim that his

sentence is illegal under Alleyne.     While claims challenging the legality of

sentence are subject to review within the PCRA, the petitioner must first

satisfy the PCRA’s time limits.     Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999).    Appellant cannot rely on Alleyne to meet the timeliness

exception of section 9545(b)(1)(iii), as Alleyne does not apply retroactively

to collateral review. See Commonwealth v. Washington, 142 A.3d 810,

820 (Pa. 2016).

      Therefore, we are constrained to conclude that Appellant has failed to

meet any timeliness exception and, thus, the PCRA court did not err in

dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017

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