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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                             Appellee

                        v.

HECTOR RIVERA

                             Appellant                        No. 853 EDA 2016


                  Appeal from the PCRA Order February 24, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1106201-1996


BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                                    FILED APRIL 27, 2017

       Hector Rivera appeals from the February 24, 2016 order of the

Philadelphia County Court of Common Pleas dismissing as untimely his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       On May 27, 1997, following a bench trial, the trial court convicted

Rivera     of rape, statutory       rape,      indecent   assault,    unlawful   restraint,

endangering       the   welfare     of   children,    corruption      of   minors,    false

imprisonment,      attempted      involuntary      deviate   sexual    intercourse,    and

indecent exposure.1          On November 29, 1999, the trial court sentenced
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
       18 Pa.C.S. §§ 3121, 3122, 3126, 2902, 4304, 6301, 2903, 3123, and
3127, respectively.
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Rivera to a total of 23½ to 47 years’ incarceration. On April 18, 2001, this

Court affirmed his judgment of sentence.          Rivera filed a petition for

allowance of appeal, which the Pennsylvania Supreme Court denied on

October 4, 2001.

       On October 3, 2002, Rivera timely filed his first PCRA petition, which

the PCRA court denied. Rivera appealed to this Court and, on November 29,

2005, we vacated the PCRA court’s order and remanded for the PCRA court

to make a determination regarding Rivera’s indigency status and appoint

counsel if necessary.       On June 25, 2008, the PCRA court again dismissed

Rivera’s PCRA petition. Rivera appealed to this Court, and we affirmed on

July 14, 2009.

       On March 25, 2014, Rivera filed a writ of habeas corpus claiming

ineffective assistance of counsel, which the PCRA court treated as a second

PCRA petition.2      On July 23, 2015, Rivera filed the instant PCRA petition,

which the PCRA court treated as a supplement to Rivera’s second PCRA

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       2
         Because the habeas petition asserted a claim of trial counsel
ineffectiveness, the trial court did not err in treating it as a PCRA petition.
See 42 Pa.C.S. § 9542 (“The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.”);
see also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (“No
other statutory or common law remedy ‘for the same purpose’ is intended to
be available; instead, such remedies are explicitly ‘encompassed’ within the
PCRA.”).




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petition. The PCRA court addressed all of Rivera’s claims in its August 24,

2015 notice of intent to dismiss pursuant to Pennsylvania Rule of Criminal

Procedure 907(1). Rivera timely objected, and, on February 24, 2016, the

PCRA court issued an order and opinion dismissing Rivera’s petition. Rivera

timely filed a notice of appeal. The PCRA court did not order Rivera to file a

Pennsylvania Rule of Appellate Procedure 1925(b) statement.3

       On appeal, Rivera raises the following issues:

           I.    Did the P.C.R.A. Court err in denying the instant Post
                 Conviction Relief Act Petition without a hearing when
                 the “new rule” of law created by the United States
                 Supreme Court in their plurality decision in Alleyne v.
                 United States, 133 S.Ct. 2151 (2013) is a
                 “substantive    rule,”    that     by    “constitutional
                 requirement” must be implied (sic) retroactively in the
                 instant case?

           II.   Did the P.C.R.A. Court err in denying the Post
                 Conviction Relief Act Petition without a hearing when
                 Mr. Rivera filed the instant Post Conviction Relief Act
                 Petition timely by filing within sixty (60) days of
                 learning of the Supreme Court of Pennsylvania’s
                 decision in Commonwealth v. Hopkins, 117 A.3d
                 247 (2015)?

           III. Did the P.C.R.A. Court err in denying the Post
                Conviction Relief Act Petition without a hearing when
                Mr. Rivera contends that through the Court’s inherent
                power, the P.C.R.A. Court always retains jurisdiction
                to correct his patently unconstitutional, and therefore
                illegal sentence?

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       3
       The PCRA court did not file a Rule 1925(a) opinion; however, the
reasons for its order are included in its February 24, 2016 Order and
Opinion.



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Rivera’s Br. at 4 (suggested answers omitted).4

       Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez–Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

       It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”     Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition,

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”            42 Pa.C.S. § 9545(b)(1).   A

judgment is 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 time for seeking [such] review.”      42

Pa.C.S. § 9545(b)(3).

       The trial court sentenced Rivera on November 29, 1999. He appealed

to this Court, and we affirmed his judgment of sentence on April 18, 2001.

Rivera then sought allowance of appeal, which the Pennsylvania Supreme


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       4
         In his March 25, 2014 writ of habeas corpus, Rivera raised an
ineffectiveness of counsel claim; however, Rivera does not raise this issue on
appeal.



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Court denied on October 4, 2001. Rivera did not file a writ of certiorari with

the United States Supreme Court and, therefore, his judgment of sentence

became final on January 2, 2002.5 He had one year from that date, that is,

until January 2, 2003, to file a timely PCRA petition. Therefore, his current

petition, filed on July 23, 2015, is facially untimely.

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory 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); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed



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       5
        Rivera had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13.




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within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

        Rivera claims that Alleyne created a new constitutional right that

should be applied retroactively.       However, our Supreme Court held in

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

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum sentences. Thus, Alleyne does not apply retroactively to Rivera’s

case.
        Rivera also claims he meets the “new facts” exception because he filed

his PCRA petition within 60 days of learning of the Commonwealth v.

Hopkins decision. In Hopkins, the Pennsylvania Supreme Court found that

pursuant to Alleyne, the mandatory minimum sentencing scheme set forth

in 18 Pa.C.S. § 6317 (“Drug-free school zones”) was unconstitutional in its

entirety. 117 A.3d at 262. Unlike Rivera, who seeks relief through a PCRA

petition, the appellant in Hopkins had filed a direct appeal, as his sentence

was not final at the time the United States Supreme Court issued its decision

in Alleyne.     Further, “a judicial opinion does not qualify as a previously

unknown ‘fact’ capable of triggering the timeliness exception set forth in

section 9545(b)(1)(ii) of the PCRA.” See Commonwealth v. Cintora, 69

A.3d 759, 763 (Pa.Super. 2013).

        Finally, Rivera claims that we have the inherent power to correct illegal

sentences.     “Although legality of sentence [claims are] always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits

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or one of the exceptions thereto.”     Commonwealth v. Infante, 63 A.3d

358, 365 (Pa.Super. 2013) (quoting Commonwealth v. Fowler, 930 A.2d

586, 592 (Pa.Super. 2007)).     Therefore, because Rivera’s PCRA petition is

untimely, this Court lacks jurisdiction to hear any claim, including a

challenge to the legality of his sentence.

      In sum, Rivera’s PCRA petition is time-barred. We conclude the PCRA

court’s dismissal of the PCRA petition as untimely is supported by the record

and free of legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




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