J-S51024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER PADILLA

                            Appellant                No. 3129 EDA 2015


               Appeal from the PCRA Order September 28, 2015
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000265-2007,
              CP-39-CR-0000270-2007, CP-39-CR-0000276-2007,
                            CP-39-CR-0000289-2007


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 06, 2016

        Christopher Padilla appeals from the order of the Court of Common

Pleas of Lehigh County that dismissed his petition to correct an illegal

sentence, which the court deemed a petition filed under the Post Conviction

Relief Act.1 After careful review, we affirm.

        On November 5, 2007, Padilla pled guilty to four separate counts of

robbery. On December 17, 2007, the court imposed an aggregate sentence

of 15 to 30 years’ imprisonment. In Case No. 265-2007, the court indicated

that it would impose a mandatory minimum sentence of five years’

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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incarceration because Padilla possessed a firearm during that robbery. N.T.

Guilty Plea Hearing, 11/5/07, at 3, 7. See 42 Pa.C.S. § 9712 (sentences for

offenses committed with firearms).

      Padilla filed timely post-sentence motions that the court denied on

January 10, 2008.      He filed an appeal to this Court, which affirmed his

judgment of sentence on January 9, 2009.        Commonwealth v. Padilla,

968 A.2d 705 (Pa. Super. 2009) (unpublished memorandum).            Padilla did

not file a petition for allowance of appeal.

      On December 15, 2014, Padilla filed a pro se PCRA petition that the

court dismissed as untimely on February 20, 2015.       On August 11, 2015,

Padilla filed a pro se “Petition to Correct Illegal Sentence Pursuant to the

Court’s Inherent Jurisdiction to Correct Illegal Sentences.” The court treated

the petition as an untimely PCRA petition and on August 26, 2015, issued a

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907.       Padilla filed a

response, and on October 2, 2015, the court dismissed the petition.

      This timely appeal followed in which Padilla raises the following issues

for our review:

      1. Whether the lower court erred in treating [Padilla’s] petition
         to correct illegal sentence . . . as a petition filed under the
         PCRA, holding that the PCRA is the exclusive method for
         obtaining post trial relief.

      2. Whether the lower court erred in treating [Padilla’s] petition
         to correct illegal sentence as a PCRA [petition], and failing to
         exercise its inherent jurisdiction/power to correct illegal
         sentence where a constitutional challenge to a sentence
         imposed utilizing a mandatory minimum statute that is invalid
         under Alleyne v. United States, [133 S.Ct. 2151 (2013)],

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           implicates the legality of a sentence and is therefore non-
           waivable, and correctable by the sentencing/trial court
           pursuant to the court’s inherent power to correct illegal
           sentences at any time.

Appellant’s Brief, at 3.

        “Our standard of review regarding a PCRA court’s order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. The PCRA court’s findings will not be disturbed unless

there    is   no     support   for   the    findings   in   the    certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).

        Padilla first asserts that the trial court erred by treating his petition as

a PCRA petition. However, it is well-settled that “[t]he PCRA . . . is the sole

means of obtaining collateral relief in Pennsylvania.”            Commonwealth v.

Turner, 80 A.3d 754, 767 (Pa. 2013).              Accordingly, the trial court was

required to treat Padilla’s filing as a PCRA petition.

        Section 9545 of the PCRA provides, in relevant part:

           (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 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;


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              (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.

        (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.

        (3)   For purposes of this subchapter, a judgment
              becomes 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 the time for
              seeking the review.

42 Pa.C.S. § 9545(b)(1)-(3).

     This Court affirmed Padilla’s judgment of sentence on January 9, 2009.

He did not file a petition for allowance of appeal, and accordingly, his

judgment of sentence became final thirty days after that date, on February

8, 2009. See Pa.R.A.P. 903(a); 42 Pa.C.S. § 9545(b)(3). Therefore, he had

until February 8, 2010 to file a timely PCRA petition.     See 42 Pa.C.S. §

9545(b)(1). Padilla filed the instant petition on August 11, 2015, more than

five years after his judgment of sentence became final.

     A court has no jurisdiction to consider an untimely PCRA petition.

Commonwealth       v.   Robinson,   837   A.2d   1157,    1161   (Pa.   2003).

Therefore, the PCRA court lacked jurisdiction to consider Padilla’s petition


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unless he could meet one of the enumerated exceptions included in Section

9545(b)(1)(i)-(iii).

      Padilla argues that his mandatory minimum sentence is illegal under

Alleyne v. United States, 133 S.Ct. 2151 (2013), which held that any fact

that increases a penalty must be submitted to a jury and found beyond a

reasonable doubt. Alleyne was decided on June 17, 2013, and accordingly,

had to be raised in a PCRA petition within sixty days of that date. See 42

Pa.C.S. § 9545(b)(1)(i), (2).   Padilla’s petition, filed on August 11, 2015,

clearly did not meet the sixty-day requirement.        In addition, “[e]ven

assuming that Alleyne did announce a new constitutional right, neither our

Supreme 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.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014).

      The trial court properly deemed Padilla’s petition to be an untimely

PCRA petition. Because a court has no jurisdiction to consider an untimely

PCRA petition, see Robinson, supra, the trial court did not err by

dismissing Padilla’s filing.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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