J-S60008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOSE A. COLON,

                            Appellant                No. 3683 EDA 2015


                 Appeal from the PCRA Order November 24, 2015
              In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0310501-2003, CP-51-CR-0310511-
                                      2003


BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED OCTOBER 28, 2016

        Appellant, Jose A. Colon, appeals from the order denying his second

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

§§ 9541-9546. We affirm.

        We previously summarized the facts of the crime as follows:

               On February 19, 2003 in the area of 3300 Jasper Street in
        Philadelphia, an argument started between neighborhood
        resident Cynthia Colon and several young females. Cynthia
        Colon sold drugs on the corner of Jasper and Wensley Streets for
        an organization headed by Appellant and his co-defendant in the
        instant case, David Lopez.     The young women with whom
        Cynthia Colon quarreled were affiliated with a rival drug gang
        headed by a man known as “Flacco.” Flacco wanted to expand
        territory onto the corner controlled by Appellant and co-
        defendant.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           Several hours after the altercation, Cynthia Colon was
     accosted by Earnest Barker, an associate of Flacco’s. Cynthia
     Colon’s uncle, Edwin Colon, came outside and began to fight with
     Ernest Barker. A crowd that included partisans of both gangs
     gathered to watch the fight. Appellant, co-defendant, and an
     unidentified black male arrived at the scene. As Edwin Colon
     gained the upper hand in the fight, co-defendant passed the
     unidentified black male a gun and told him to shoot Ernest
     Barker.

           Affiliates of both gangs drew weapons. Shots were fired.
     Co-defendant told Appellant to “shoot, shoot.”         Appellant
     retrieved a loaded AK-47 assault rifle he had concealed under a
     nearby truck and began shooting. As the crowd scattered,
     bystander Angel Rodriquez was shot in the back. Ernest Barker
     was shot in the leg. Ernest Barker survived his wound, but
     Angel Rodriquez died shortly after the shooting.

           On March 23, 2004, the joint jury trial of Appellant and co-
     defendant commenced before the trial court. At trial three
     witnesses testified to the same material facts contained herein.
     The jury was charged concerning self-defense, transferred
     intent, and mistaken belief of right to self-defense including heat
     of passion voluntary manslaughter.

Commonwealth v. Colon, 883 A.2d 686 (Pa. Super. filed July 20, 2005)

(unpublished memorandum at 1–2).

     The PCRA court described the procedural history as follows:

           On March 30, 2004, following a jury trial, Petitioner was
     convicted of voluntary manslaughter, violations of the Uniform
     Firearms Act (“VUFA”), possessing an instrument of crime
     (“PlC”), recklessly endangering another person (“REAP”), and
     aggravated assault. On June 18, 2004, Petitioner was sentenced
     to an aggregate term of twenty to forty years’ imprisonment.
     On July 20, 2005, following a direct appeal, the Superior Court
     affirmed in part, vacated in part, and remanded for resentencing




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     on the PIC conviction.2 The Pennsylvania Supreme Court denied
     allocatur on December 28, 2005.3 On March 9, 2006, the lower
     court reimposed its sentence on the PIC charge.
           2
              Commonwealth v. Colon, 883 A.2d 686 (Pa.
           Super. 2005)(unpublished memorandum).
           3
              Commonwealth v. Colon, 891 A.2d 729 (Pa.
           2005).

           On June 14, 2006, Petitioner filed his first timely pro se
     PCRA petition. Appointed counsel subsequently filed a
     Turner/Finley4 no-merit letter on November 20, 2007.         On
     January 15, 2008, the PCRA court denied his petition. On
     February 9, 2009, the Superior Court affirmed the dismissal.5
     The Pennsylvania Supreme Court denied allocatur on September
     1, 2009.6
           4
              Commonwealth v. Turner, 544 A.2d 927 (Pa.
           1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
           Super. 1988)(en banc).
           5
              Commonwealth v. Colon, 970 A.2d 465 (Pa.
           Super. 2009)(unpublished memorandum).
           6
              Commonwealth v. Colon, 983 A.2d 726 (Pa.
           2009).

            On June 18, 2015, Petitioner filed the instant pro se PCRA
     petition, his second. Pursuant to Pennsylvania Rule of Criminal
     Procedure 907, Petitioner was served notice of the lower court’s
     intention to dismiss his petition on October 13, 2015. On
     November 24, 2015, the PCRA court dismissed his petition as
     untimely. On December 8, 2015, the instant notice of appeal
     was timely filed to the Superior Court.

PCRA Court Opinion, 1/7/16, at 1–2.

     Appellant purports to raise the following issue on appeal:

     As the Pennsylvania Superior and Supreme Courts have found
     section 9712 to be facially unconstitutional in its entirety, is the
     Appellant entitled to relief from his illegal sentence as the statute


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      has been unconstitutional from the date of its passage and
      ineffective for any purpose?

Appellant’s Brief at 5 (full capitalization omitted).

      “In reviewing the propriety of an order granting or denying PCRA

relief, an appellate court is limited to ascertaining whether the record

supports the determination of the PCRA court and whether the ruling is free

of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.

2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).

We grant great deference to the PCRA court’s findings that are supported in

the record and will not disturb them unless they have no support in the

certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.

2014).   “There is no absolute right to an evidentiary hearing on a PCRA

petition, and if the PCRA court can determine from the record that no

genuine issues of material fact exist, then a hearing is not necessary.”

Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting

Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a

decision is within the discretion of the PCRA court and will not be overturned

absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,

617 (Pa. 2015).

      The timeliness of a PCRA petition is a jurisdictional threshold that may

not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759,

762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]

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burden to allege and prove that one of the timeliness exceptions applies.

See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Whether [a petitioner] has carried his burden is a threshold inquiry prior to

considering the merits of any claim.”            Commonwealth v. Edmiston, 65

A.3d 339, 346 (Pa. 2013).

       In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final.           42 Pa.C.S. § 9545(b)(1).    A judgment of

sentence “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 time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3).

       As noted, Appellant was resentenced on March 9, 2006, and he did not

file a direct appeal following re-imposition of sentence.       Thus, Appellant’s

judgment of sentence became final on April 10, 2006,1 thirty days after the

time expired for Appellant to file a direct appeal to this Court. 42 Pa.C.S.

§ 9545(b)(3).      Pursuant to the PCRA, Appellant had one year, or until

April 10, 2007, in which to file a timely PCRA petition.        Thus, Appellant’s



____________________________________________


1
  The thirtieth day fell on April 8, 2006, which was a Saturday. Whenever
the last day of any period referenced in a statute falls on a Saturday or
Sunday, we omit that day from the computation. 1 Pa.C.S. § 1908.



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second PCRA petition is patently untimely as it was not filed until June 18,

2015.

        Nevertheless, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2    “That burden necessarily entails an acknowledgment by

the petitioner that the PCRA petition under review is untimely but that one

or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,

the PCRA limits the reach of the exceptions by providing that a petition

invoking any of the exceptions must be filed within 60 days of the date the

claim first could have been presented.” Commonwealth v. Walters, 135

A.3d 589, 592 (Pa. Super. 2016) (citing Commonwealth v. Leggett, 16
____________________________________________


2
    The exceptions to the timeliness requirement are:

        (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), (ii), and (iii).




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A.3d 1144, 1146 (Pa. Super. 2011), and 42 Pa.C.S. § 9545(b)(2)). In order

to be entitled to the exceptions to the PCRA’s one-year filing deadline, “the

petitioner must plead and prove specific facts that demonstrate his claim

was raised within the sixty-day time frame” under section 9545(b)(2).

Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

      The PCRA court appropriately and succinctly addressed Appellant’s

issue as follows:

           [Appellant’s] instant petition challenged the legality of his
      sentence in light of Commonwealth v. Newman, 99 A.3d 86 (Pa.
      Super. 2014).7 See PCRA petition at 5 (unpaginated). . . .
            7
               [Appellant] mistakenly attributed the abrogation of
            42 Pa.C.S.A. §9712(a) to Commonwealth v.
            Newman, 99 A.3d 86 (Pa. Super. 2014). Newman
            however confronted the constitutionality of 42
            Pa.C.S.A. § 9712.1. Nevertheless, Commonwealth v.
            Valentine, 101 A.3d 801 (Pa. Super. 2014), which
            did address the relevant mandatory minimum
            section 9712(a), neither created a new constitutional
            right under the PCRA nor extended the retroactive
            application of Alleyne v. United States, 133 S.Ct.
            2151 (2013).

            Rather than complying with 42 Pa.C.S.A. § 9545(b)(1),
      [Appellant] repudiated his obligation to establish timeliness,
      arguing that the time-bar is inapplicable due to the illegality of




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       his sentence.8 See id.at 8. It seems [Appellant] erroneously
       conflated the validity of [the] mandatory minimum statute, 42
       Pa.C.S.A. §9712(a), with that of the PCRA time-bar. However,
       an allegation alleging that a sentence currently being served is
       illegal is not an exception to the PCRA court’s timeliness
       requirement. Commonwealth v. Pate, 2014 WL 10790083, at *1
       (Pa. Super. 2014) (citing Commonwealth v. Grafton, 928 A.2d
       1112, 1114 (Pa. Super. 2007) (“even claims that a sentence is
       illegal . . . are not beyond the jurisdictional time restrictions.”)).
       [Appellant’s] failure to plead specifically the applicability of any
       of the exceptions to the time requirements of the PCRA was fatal
       to his petition.
              8
                 It is readily apparent that the only exception to the
              time requirements of the Act that could conceivably
              apply      is     the   exception     enumerated       at
              § 9545(b)(1)(iii),     which     [Appellant]   explicitly
              disavowed.       See 907 Response, 11/2/15 at 1.
              Nonetheless, his petition referencing Alleyne was
              deficient in two distinct, but equally fatal ways.
              Firstly, his petition failed to invoke the exception
              within sixty days of the date the claim could have
              been presented, namely June 17, 2013, the date the
              United States Supreme Court decided Alleyne. His
              petition was not filed until 2015, well beyond the
              sixty-day mandate. Secondly, in the recent decision
              Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.
              Super. 2014), the Superior Court concluded that
              “even 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.”

PCRA Court Opinion, 1/7/16, at 3–4.3



____________________________________________


3
   Moreover, our Supreme Court recently held that “Alleyne does not apply
retroactively to cases pending on collateral review.” Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016).



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      Therefore, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented.    See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.

Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely

petition).   Likewise, we lack the authority to address the merits of any

substantive claims raised in the PCRA petition.    See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to

a court’s right or competency to adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




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