J-S38037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANGEL COLON

                            Appellant                 No. 3247 EDA 2015


               Appeal from the PCRA Order September 23, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002033-2004
                                          CP-15-CR-0004401-2004


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

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

       Appellant Angel Colon appeals from the order entered in the Chester

County Court of Common Pleas dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.      We

affirm.

       The PCRA court summarized the factual and procedural history as

follows:

           On September 12, 2005, Appellant pled guilty to one count
           of possession with intent to deliver a controlled substance,
           two counts of delivery of a controlled substance and one
           count of corrupt organizations.[1] On April 7, 2006, he was
____________________________________________


1
  Appellant was charged with eleven counts of delivery of a controlled
substance, 35 P.S. § 780-113(a)(30), on criminal information number CP-
15-CR-0004401-2004. On criminal information number CP-15-CR-0002033-
2004, Appellant was charged with corrupt organizations, 18 Pa.C.S. §
(Footnote Continued Next Page)
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          sentenced to serve a term of imprisonment of twenty to
          fifty years. The Pennsylvania Superior Court affirmed his
          judgment of sentence on May 14, 2007, and on November
          6, 2008, the Pennsylvania Supreme Court denied his
          petition for allowance of appeal.

          On August 3, 2009, Appellant filed a timely petition under
          the [PCRA]. After finding that he was not entitled to post-
          conviction relief, [the PCRA court] dismissed his petition on
          December 17, 2009.        The Superior Court affirmed on
          September 10, 2010.

          On April 16, 2013, Appellant filed a second PCRA petition.
          [The PCRA court] dismissed that petition as untimely on
          June 25, 2014. Appellant appealed. While his appeal of
          that order was pending in the Superior Court, he filed in
          [the PCRA court] a pro se petition for writ of habeas
          corpus, which [the PCRA court] treated as a third PCRA
          petition, and dismissed on October 27, 2014. The Superior
          Court, agreeing that his second petition was untimely,
          affirmed the dismissal of the petition on March 4, 2015.

          On August 12, 2015, Appellant filed the instant petition.
          [The PCRA court] reviewed the petition, found that it was
          untimely, and on August 27, 2015, provided to him the
          mandatory twenty-day notice of our intent to dismiss his
          petition. Although Appellant responded to this notice, his
          response established entitlement to no exception to the
          PCRA’s timeliness requirements, and [the PCRA court]
          dismiss[ed] his petition on September 23, 2015.

Pa.R.A.P. 1925(a) Opinion, 12/3/2015, at 1-2.

      On October 26, 2015, Appellant filed a timely notice of appeal.2

Appellant included a statement of questions raised on appeal with his notice
                       _______________________
(Footnote Continued)

911(b), and dealing in proceeds of unlawful activities, 18 Pa.C.S. §
5111(a)(1).
2
  Although the order dismissing Appellant’s PCRA petition was dated
September 23, 2015, notice was not sent until September 24, 2015. Thirty
days from September 24, 2015 was Saturday, October 24, 2015. See
(Footnote Continued Next Page)


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of appeal. The PCRA court issued an opinion pursuant to Pennsylvania Rule

of Appellate Procedure 1925(a) on December 3, 2015.

      Appellant raises the following issues on appeal:

          1. Did the [c]ourt [e]rr in dismissing [Appellant’s PCRA
          p]etition, challenging the legality of 18 Pa.C.S.[] § 7508?

          2. Did the [c]ourt err in dismissing [Appellant’s PCRA
          p]etition without a hearing, when petition had illegal
          sentence concerns?

Appellant’s Brief at 4.

      Our standard of review from the denial of post-conviction relief “is

limited to examining whether the PCRA court’s determination is supported by

the   evidence    of     record     and    whether   it   is   free   of   legal   error.”

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super.2011) (citing

Commonwealth v. Morales, 701 A.2d 516, 520 (Pa.1997)).

      Before we address the merits of Appellant’s PCRA petition, we must

first determine whether the petition is timely.           The PCRA provides that a

petition, “including a second or subsequent petition, shall be filed within one
                       _______________________
(Footnote Continued)

Pa.R.A.P. 903(a) (“notice of appeal required by Rule 902 (manner of taking
appeal) shall be filed within 30 days after the entry of the order from which
the appeal is taken”); Pa.R.A.P. 108(a)(1) (“the day of entry shall be the
day the clerk of the court or the office of the government unit mails or
delivers copies of the order to the parties”). Therefore, Appellant had until
Monday, October 26, 2015 to file a timely notice of appeal. 1 Pa.C.S. §
1908 (When last day of time period “fall[s] on Saturday or Sunday, . . . such
day shall be omitted from the computation”); Pa.R.A.P. 107 (“Chapter 19 of
Title 1 of the Pennsylvania Consolidated Statutes (rules of construction) so
far as not inconsistent with any express provision of these rules, shall be
applicable to the interpretation of these rules . . . .”).



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

accord     Commonwealth          v.    Monaco,     996     A.2d    1076,        1079

(Pa.Super.2010).    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

the review.” 42 Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar exist. The exceptions allow

for limited circumstances under which a court may excuse the late filing of a

PCRA petition. Monaco, 996 A.2d at 1079; 42 Pa.C.S. § 9545(b)(1).                The

late filing of a petition will be excused if a petitioner alleges and proves:

            (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).     When invoking a time-bar exception, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).




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      Appellant’s judgment of conviction became final on February 4, 2009,

when the time to file a petition for a writ of certiorari with the Supreme

Court of the United States expired. Commonwealth v. Wilson, 911 A.2d

942, 745 (Pa.Super.2006); 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13(1)

(allowing 90 days for the filing of writ of certiorari in the Supreme Court of

the United States).   He had one year from that date, until February 4, 2010,

to file a timely PCRA petition. Therefore, his current petition, filed on August

12, 2015, is facially untimely.

      Appellant relies on Alleyne v. United States, --- U.S. ---, 133 S.Ct.

2151, 2158, 186 L.Ed.2d 314 (2013), to allege he qualifies for the new-

constitutional-right exception to the PCRA time-bar. We disagree.

      In Alleyne, the Supreme Court of the United States found “[f]acts that

increase the mandatory minimum sentence are . . . elements and must be

submitted to the jury and found beyond a reasonable doubt.” Alleyne, ---

U.S. ---, 133 S.Ct. at 2158.      This was an extension of the Apprendi v.

New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), line of

Supreme Court of United States cases.        Commonwealth v. Miller, 102

A.3d 988, 994 (Pa.Super.2014).

      In Miller, this Court found that, even if Alleyne announced 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.” Miller, 102 A.3d at

995. Because neither the Supreme Court of Pennsylvania nor the Supreme

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Court of the United States have held that Alleyne applies to cases on

collateral review, Appellant cannot satisfy the new-constitutional-right

exception to the PCRA time-bar. See 42 Pa.C.S. § 9545(b)(1)(iii); Miller,

102 A.3d at 995.3

         Accordingly, Appellant’s PCRA petition is time-barred and he fails to

establish any exception to the PCRA time-bar. The PCRA court’s dismissal of

the PCRA petition as untimely is supported by the record and free of legal

error.

         Order affirmed.

         President Judge Emeritus Ford Elliott joins in the memorandum.

         Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016


____________________________________________


3
  Although a challenge to the 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.” See Commonwealth v. Infante, 63
A.3d 358, 365 (Pa.Super.2013). If a PCRA petition is untimely, the court
lacks the jurisdiction to hear any claim, including a legality of sentence
challenge. Id.




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