J-S71020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JUAN MULERO

                             Appellant                No. 2503 EDA 2016


               Appeal from the PCRA Order entered June 28, 2017
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0900851-2000


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 14, 2018

        Appellant, Juan Mulero, appeals pro se from the June 28, 2017 order

entered in the Court of Common Pleas of Philadelphia County, dismissing his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

        The PCRA court summarized the relevant facts and procedural history

as follows.

        On May 12, 2003, following a non-jury trial[, Appellant] was
        convicted of first-degree murder and possession of an instrument
        of crime. On July 1, 2003, [Appellant] was sentenced to life
        imprisonment on the murder conviction and a lesser concurrent
        term of incarceration on the remaining conviction. Following a
        direct appeal, the Superior Court affirmed the judgment of
        sentence on April 6, 2004. [Appellant] did not seek allowance of
        appeal in the Pennsylvania Supreme Court.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      On July 8, 2005, [Appellant] filed his first pro se PCRA petition.
      Counsel was appointed and subsequently filed a Turner/Finley
      no-merit letter. The PCRA court denied the petition on March 7,
      2007 and granted counsel leave to withdraw. The Superior Court
      affirmed the PCRA court’s order on October 25, 2007.

      On December 14, 2015, [Appellant] filed the instant pro se PCRA
      petition, his second. Pursuant to Pennsylvania Rule of Criminal
      Procedure 907, [Appellant] was served notice of the lower court’s
      intention to dismiss his petition on April 26, 2016. [Appellant]
      submitted responses to the Rule 907 notice on May 9, May 18,
      and June 13, 2016. On June 28, 2016, the PCRA court dismissed
      his petition as untimely. On July 22, 2016, [Appellant timely
      appealed.]

PCRA Court Opinion, 3/1/17, at 1-2 (footnotes omitted).

      On appeal, Appellant challenges the PCRA court’s dismissal of the instant

petition as untimely, arguing he should be released from custody because the

evidence was insufficient to sustain his convictions and because the

“Commonwealth . . . failed to provide and connect letter brief statement at

trial served by [Commonwealth] to [Superior Court Prothonotary] in August

22, 2007.” Appellant’s Brief at 4.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the 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). All PCRA petitions,

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

the date the judgment becomes final” unless an exception to timeliness

applies.   42 Pa.C.S.A. § 9545(b)(1).      “The PCRA’s time restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this


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Court nor the [PCRA] court has jurisdiction over the petition.               Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely

filed.    See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of Brady1 claim separate from consideration of its timeliness).

The timeliness requirements of the PCRA petition must be met, even if the

underlying claim is a challenge to the legality of the sentence.                 See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality

of sentence is always subject to review within the PCRA, claims must still first

satisfy the PCRA’s time limits or one of the exceptions thereto.”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).

         Finally, the exception to the PCRA’s one-year time limit requires

petitioners to file their PCRA petition within sixty days of the date the claim

could have been presented. Thus, petitioners must plead and prove specific

facts demonstrating their claim was raised within the sixty-day time frame of

Section     9545(b)(1)(ii).     See     42     Pa.C.S.A.   § 9545(b)(2);   see   also

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013).



____________________________________________


1   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).


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       Even though the PCRA court dismissed the instant petition as untimely,

Appellant nowhere addressed the timeliness of his petition in his appellate

brief. A review of the record reveals that Appellant’s sentence became final

on May 6, 2004, 30 days after the judgment of sentence was affirmed and the

filing period for a petition for allowance of appeal expired. The instant petition,

which was filed on December 14, 2015, is therefore facially untimely.

       To overcome the facial untimeliness, before the PCRA court but not here,

Appellant argued that he was entitled to a retroactive application of Alleyne.2

The PCRA court rejected the argument noting that Alleyne is not applicable

to cases, like the instant one, pending on collateral review, citing inter alia,

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold

that Alleyne does not apply retroactively to cases pending on collateral

review[.]”). The PCRA court also noted that Appellant failed to bring his

Alleyne claim within 60 days of the date the case was decided.

       We agree with the PCRA court’s analysis and conclusions. Accordingly,

we affirm the order of the PCRA court dismissing Appellant’s PCRA petition as

untimely.3
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2 Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).

3 Regarding the merits of his claims, even if we were to review them, we would
note Appellant’s first claim is not cognizable under the PCRA. Indeed,
Appellant cannot challenge the sufficiency of the evidence of his convictions
in a PCRA proceeding. See generally Commonwealth v. Price, 876 A.2d



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/18




____________________________________________


988, 995 (Pa. Super. 2005) (rejecting sufficiency claim that was raised on
PCRA appeal without an ineffective assistance of counsel analysis because it
is not cognizable under the PCRA); Commonwealth v. Bell, 706 A.2d 855,
861 (Pa. Super. 1998) (explaining that sufficiency-of-the-evidence claims are
not cognizable in the context of a PCRA petition).

Regarding Appellant’s second claim, it is unclear whether he is raising an
evidentiary claim or a violation of the rules of appellate procedure in
connection with the direct appeal. Either way, these claims cannot be raised
for the first time on appeal from the denial of his second PCRA petition.
Pa.R.A.P. 302.

Accordingly, the claims, even if preserved, could not have been reviewed.

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