J-S32012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

ALEXANDER LOPEZ,

                        Appellant                 No. 2881 EDA 2014


              Appeal from the PCRA Order August 19, 2014
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0001340-2008



BEFORE: BOWES, MUNDY AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MAY 19, 2016

      Acting pro se, Alexander Lopez appeals the order entered on August

19, 2014, wherein the trial court dismissed his serial PCRA petition.   We

affirm.

      On November 17, 2008, Lopez pled guilty to robbery graded as a first

degree felony and conspiracy to commit that in relation to an incident

involving John Tyner, a business man who had rented a room in the Red

Roof Inn on Catasauqua Road in Lehigh County.            Appellant and an

accomplice fraudulently gained entry to the victim’s room under the pretext

that they had accidentally damaged his rental car.   Once inside, Appellant

brandished a semi-automatic handgun and demanded money.                 The

assailants ransacked the hotel room and took $80 and a cellular telephone.

* Retired Senior Judge assigned to the Superior Court.
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Dissatisfied, Appellant and his cohort demanded that Mr. Tyner produce his

credit and debit cards and reveal the corresponding personal identification

numbers.    Appellant and his cohort forced Mr. Tyner to drive them in the

rental car to several nearby automatic teller machines (“ATM”). Mr. Tyner

was able to escape his captors while they attempted to make withdrawals

using the stolen cards.

      Pursuant to the plea agreement, Appellant received an aggregate

minimum sentence of fifteen years imprisonment, and the Commonwealth

withdrew several charges including kidnapping and robbery of a motor

vehicle. The minimum sentence was based upon the consecutive imposition

of two seven-and-one-half year terms that were calculated using the offense

gravity scores for robbery and conspiracy under the sentencing guidelines.

The terms were within the standard range of the sentencing matrix for

robbery and the aggravated range of the matrix for conspiracy.         The trial

court accepted the plea agreement, and, on January 13, 2009, it imposed

the agreed-upon term of fifteen to forty years imprisonment. Appellant filed

a notice of appeal, which we quashed as untimely on June 30, 2009.

      Appellant filed his first PCRA petition on September 14, 2009.        The

trial court granted relief insofar as it permitted Appellant to file a motion to

reconsider the sentence nunc pro tunc. The trial court ultimately denied the

motion for reconsideration on December 23, 2009, and Appellant did not

appeal.    On February 24, 2011, Appellant filed another PCRA petition

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asserting the ineffective assistance of plea counsel. The PCRA court denied

the petition as untimely filed, and we affirmed.    See Commonwealth v.

Lopez, 46 A.3d 804 (Pa.Super. 2013) (unpublished memorandum).

       On July 18, 2014, Appellant filed the instant PCRA petition, wherein he

purported to invoke the United States Supreme Court’s decision in Alleyne

v. United States, 133 S.Ct. 2151 (2013), as both an exception to the PCRA

time-bar and, inexplicably, a basis to challenge his guilty plea. 1   Following

notice pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed the PCRA

petition without hearing. This appeal followed.

       We review a PCRA court order to determine whether the PCRA court’s

determination is supported by the certified record and free of legal error.

Our Supreme Court has stated, “[a]n appellate court reviews the PCRA

court's findings of fact to determine whether they are supported by the

____________________________________________


1
  Appellant’s precise argument is unclear. As discussed in the body of this
memorandum, the Alleyne Court held that any fact, other than a prior
conviction, that results in the application of a mandatory minimum sentence
must be submitted to the jury and found beyond a reasonable doubt.
Instantly, however, the trial court did not impose a mandatory minimum
sentence. In reality, Appellant pled guilty to robbery and criminal conspiracy
and agreed to the imposition of a minimum term of fifteen years
imprisonment based upon the sentencing guidelines. Hence, this case does
not implicate Alleyne or any of the mandatory sentencing statutes that this
Court has found to be unconstitutional under Alleyne.               See e.g.,
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc))
Commonwealth v. Wolfe, 106 A.3d 800 (Pa.Super. 2014), appeal granted,
121 A.3d 433 (Pa. 2015).




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record, and reviews its conclusions of law to determine whether they are

free from legal error."   Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014). “The scope of review is limited to the findings of the PCRA court and

the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Id.

      Herein, the PCRA court concluded that Appellant’s petition was barred

by the PCRA time requirements and that Appellant’s allegation of a newly-

recognized constitutional right did not fall within an exception to the time

bar. For the following reasons, we agree.

      All PCRA petitions must be filed within one year of the date that the

judgment of sentence becomes final.          42 Pa.C.S. § 9545.       The time

limitations imposed by the PCRA implicate our jurisdiction and they may not

be altered or disregarded in order to address the merits of a petition. See

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(“Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition.”).     In a prior appeal, this Court found that Appellant’s

judgment of sentence became final on January 22, 2010.             See Lopez,

supra (unpublished memorandum at *4-5).              Therefore, at the latest,

Appellant’s petition had to be filed by January 22, 2011 in order to comply

with the time requirements. Appellant filed the instant petition on July 18,

2014; thus, unless one of the exceptions to the one-year time bar set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies, the present petition is untimely.

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      Section 9545 provides the following three exceptions that allow for

review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts that could not have been ascertained by the exercise of due

diligence; and (3) a newly-recognized constitutional right.       42 Pa.C.S. §

9545 (b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and

satisfy the burden of proof. Commonwealth v. Beasley, 741 A.2d 1258,

1261-62 (Pa. 1999). In addition, any exception must be raised within sixty

days of the date the claim could have been presented.             42 Pa.C.S. §

9545(b)(2).

      Herein,   Appellant    attempts     to   invoke   the   newly-recognized

constitutional right as an exception to the PCRA time requirements.

Appellant argues that Alleyne effectively eviscerates Pennsylvania’s use of

statutory mandatory minimums.           Appellant’s brief at 5.   However, as

discussed, infra, his reliance upon Alleyne as a basis to circumvent the time

bar is unavailing.   Stated plainly, Appellant failed to satisfy the threshold

requirement of asserting the statutory exception within sixty days of the

date the claim could be presented.         The United States Supreme Court

decided Alleyne on June 17, 2013, and Appellant did not file his PCRA

petition until July 18, 2014, more than one year later.       Moreover, to the

extent that Appellant contends that he invoked Alleyne “[p]romptly upon

becoming aware of the . . . decision,” see Appellant’s brief at 5, it is beyond

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argument that the sixty-day period for a prisoner to invoke an after-

recognized constitutional right as an exception to the PCRA time bar begins

to run on the date that the underlying judicial decision is entered and not

the   date   the   decision    became     available    in   the   prison      library.

Commonwealth v. Leggett, 16 A.3d 1144, 1146-1147 (Pa.Super. 2011);

Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa.Super. 2001)

(“Neither the court system nor the correctional system is obliged to educate

or update prisoners concerning changes in case law”).                 Accordingly,

Appellant’s attempt to circumvent the statutory time bar fails.

      Moreover, even if Appellant had satisfied the threshold requirement,

his invocation of Alleyne as an exception to the PCRA time bar would fail on

the merits. Pursuant to 42 Pa.C.S. § 9545 (b)(1)(iii), to prevail on a claim

that the retroactive application of a newly-recognized constitutional right

permits   review   of   an    otherwise   untimely    petition,   Appellant     must

demonstrate that “the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or the Supreme Court

of Pennsylvania . . . and has been held by that court to apply retroactively.”

      In Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super. 2014),

this Court concluded that Alleyne does not fall within the exception invoked

by Appellant.   We noted that, “a new rule of constitutional law is applied

retroactively to cases on collateral review only if the United States Supreme

Court or our Supreme Court specifically holds it to be retroactively applicable

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to those cases.” Id. As “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[,]” we reasoned that

the PCRA petitioner cannot utilize Alleyne to successfully assert the

statutory exception outlined in § 9545 (b)(1)(iii).    To date, neither our

Supreme Court nor the United States Supreme Court has ruled Alleyne to

be retroactive.   Likewise, neither Court has disturbed the Miller Court’s

holding. Thus, it is binding. See Commonwealth v. Slocum, 86 A.3d 272,

278 n.9 (Pa.Super. 2014) (“This Court is bound by existing precedent under

the doctrine of stare decisis and continues to follow controlling precedent as

long as the decision has not been overturned by our Supreme Court.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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