J-S12045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
NOEL CARLOS RIVERA, JR.,                  :
                                          :
                   Appellant              :           No. 1364 MDA 2016

                    Appeal from the PCRA Order July 22, 2016
               in the Court of Common Pleas of Lancaster County,
               Criminal Division, No(s): CP-36-CR-0004301-2000,
              CP-36-CR-0004302-2000, CP-36-CR-0004303-2000,
              CP-36-CR-0004304-2000, CP-36-CR-0004305-2000

BEFORE: PANELLA, OTT and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 13, 2017

        Noel Carlos Rivera, Jr. (“Rivera”), appeals pro se from the Order

dismissing his fourth Petition filed pursuant to the Post Conviction Relief

Act.1 We affirm.

        In its Opinion, the PCRA court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal.        See

PCRA Court Opinion, 6/23/16, at 1-2.

        On June 23, 2016, the PCRA court issued a Pa.R.Crim.P. 907 Notice of

its intent to dismiss Rivera’s Petition. Rivera filed a pro se Objection to the

PCRA court’s Rule 907 Notice. On July 22, 2016, the PCRA court issued an

Order dismissing the Petition. Rivera filed a timely Notice of Appeal and a




1
    See 42 Pa.C.S.A. §§ 9541-9546.
J-S12045-17


court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

      On appeal, Rivera raises the following issue for our review:

      Whether the Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
      holding that the State collateral courts must now enforce
      substantive federal Constitutional rulings from the U.S. Supreme
      Court applies exclusively to just juvenile homicide offenders
      serving mandatory life without parole sentences; and, if not,
      whether Alleyne v. United States, 133 S. Ct. 2151 (2013),
      applies to [] Rivera’s sentence under 42 Pa.C.S.[A.]
      § 9545(b)(1)(iii)’s exception for such substantive federal
      Constitutional rules?

Brief for Appellant at 4.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      On appeal, Rivera contends that the PCRA court erred by determining

that Montgomery has no application to Rivera’s case because he was not

sentenced for homicide, and was not a juvenile at the time he committed his

offenses.   Brief for Appellant at 10.   Rivera asserts that the retroactivity

ruling announced in Montgomery was not limited to juvenile homicide


                                  -2-
J-S12045-17


offenders serving mandatory life sentences without the possibility of parole.

Id. Rivera claims that, when ruling on his Petition, the PCRA court did not

have    the   benefit    of   the   Pennsylvania   Supreme   Court’s   ruling   in

Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), which, Rivera

argues, “clearly left the door open” for broader retroactivity jurisprudence.

Brief for Appellant at 11.

       In its Opinion, the PCRA court thoroughly addressed Rivera’s issue, set

forth the relevant law, and determined that the issue lacks merit. See PCRA

Court Opinion, 6/23/16, at 2-8. We agree with the reasoning of the PCRA

court, and affirm on this basis. See id.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




2
 We further conclude that Rivera’s reliance on Washington is misplaced, as
our Supreme Court expressly ruled therein that “Alleyne does not apply
retroactively to cases pending on collateral review.” Washington, 142 A.3d
at 820.


                                     -3-
                                                                                             Circulated 03/16/2017 11:15 AM




IN THE COURT OF COMMON PLEAS OF LANCASTER CO.UNTY, PENNSYLVANIA
                                                CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

                       v.                                      Nos.4301,4302,4303,4304,4305-2000

NOEL CARLOS RIVERA

                                                 Rule 907 Notice
BY: KNISELY, J.                                                                           June 23, 2016

          Before the Court is Defendant's fourth petition for collateral relief filed pursuant to the

Post Conviction Collateral Relief Act (PCRA). 1 Defendant's petition is time barred. This Notice

is written pursuant to Pa.R.Crim.P. 907. Defendant's petition will be dismissed without a

hearing unless Defendant amends his petition within 20 days and provides a reviewable basis for

relief.

          On March 15, 2001, Petitioner entered an open guilty plea to seven counts of robbery, 2

one count of aggravated assault,' and one count of.resisting arrest. 4 These charges stemmed

from Defendant committing seven robberies of convenience and grocery stores over the course

of eleven days in Lancaster City. Five of the seven robberies were committed with a firearm. On

May 4, 2001, Defendant was sentenced to an aggregate term of twenty to forty years of

incarceration. In fashioning Defendant's sentence, the court invoked Pennsylvania's mandatory
                                                                                5
minimum statute for crimes of violence cornmi tted with a firearm.                  His motion to modify

sentence was denied on May 16, 2001. The Superior Court affirmed Defendant's sentence on

                                                                                                      r-
                                                                                                          l>  ~
1 42 Pa.C.S.A. §§ 9541-46.                                                                               ::z:
2 18 Pa.C.S.A. § 3701 (aXl).                                                                             ~    :
3 18 Pa.C.S.A. § 2702 (a)(3).                                                                            U>   ~-
• 18 Pa.C.S.A. § 5104.                                                                                  ;:;:: N
5 42 Pa.C.S.A. § 9712(a) provides, in relevant part, "any person who is convicted in any court ofthi§o        w     ~
Commonwealth ofa crime of violence as defined in section 9714(g) (relating to sentences for secon@nd -o            n
subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, wheth«cJ)rn~e    a
firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or seri~ bodH;'    §j
injury, during the commission of the offense, be sentenced to a minimum sentence ofat least five y=s of~l          -f
confinement."                                                                                          l;          (./)
March 27, 2002. Defendant did not file an appeal to the Supreme Court of Pennsylvania. His •
                                                          .                            .    .
judgment became final under the PCRA on April 26, 2002, thirty days after his time to seek

review expired.

        On January 15, 2003, Defendant filed his first prose PCRA petition .. By Order of Court

dated July 7, 2003, the trial court dismissed Defendant's PCRA without a hearing, concluding

th~t Defendant failed to meet the required standard for relief under the PCRA'. On April 2, 2013,

Defendant filed a second pro se PCRA Petition. On July 7, 2013, this Court dismissed

Defendant's PCRA on the basis that Defendant's petition was untimely and failed to properly

invoke an exception to the PCRA timeliness requirements. On April 11, 2014, the Superior

Court affirmed the dismissal of Defendant's ·petition. On July 11, 2014, Defendant filed his third

prose PCRA petition. On October 30, 2014, this Court dismissed Defendant's petition without a

hearing, concluding that Defendant had, again, failed to demonstrate that he is entitled to relief

under the PCRA. On March 17, 2_016, Defendant filed the instant PCRA petition.

       A PCRA petition must be filed within one year of the date petitioner's judgment of sentence

becomes final unless he pleads and proves one of the enumerated exceptions. 42 Pa.C.S.A. § 9545.

A judgment 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.A. § 9545(b)(3). The PCRA's timeliness

requirements are jurisdictional in nature and a court may not address the merits of an untimely

filed PCRA petition. Commonwealth v. Copenhefer, 596 Pa. 104, 108~ 941 A.2d 646, 648-49

(2007). The court is precluded from addressing the merits of a petition that does not invoke one

of the statutorily enumerated exceptions. Commonwealth v. Wilson, 824 A.2d 331,


                                                   2
 333(Pa.Super. 2003). The PCRA's timeliness rules apply even to claims, such as Defendant's,

 that implicate the legality of a sentence. See Commonwealth v. Jackson, 30 A.3d 516~ 52.1-522

 (Pa.Super. 2011); Commonwealth v. Jones; 932 A.2d 179, 182 (Pa.Super. 2007). Further, even if

 a petition is entitled to one of the enumerated exceptions, but is not filed within 60 days of the

gate the claim could have been first brought, the court may not address the merits of the petition.

Id.

        Here, the petition under present consideration, filed March 17, 2016, is manifestly

untimely. Defendant's judgment became final as of April 26, 2002, upon expiration of the time

to file an appeal to the Supreme Court of Pennsylvania.See Pa.RA.P. 903(a). To be timely,

Defendant's PCRA must have been filed within one year of that date unless he pleaded and

proved that a timing exception applied. See 42 Pa.C.S.A. § 9545(b)(1Xi)-(iii). Instead, the

instant PCRA petition was filed March 17, 2016,. nearly fourteen years after Defendant's

judgment became final. Therefore, Defendant's current petition is untimely on its face unless he

pleads and proves one of the statutory exceptions to the time-bar.

        Section 9545 of the PCRA provides only three exceptions that allow for review of an

untimely PCRA.petition: (1) the petitioner's inability to raise a claim because of governmental

interference; (2) the discovery of previously unknown facts that would have supported a claim;

and (3) a newly-recognized constitutional right. 42 PaC.S.A. § 9545(b)(l)(i)-(iii). As noted

above, a PCRA petition invoking one of these statutory exceptions must "be filed within 60 days

of the date the claim could have been presented." 42 Pa. C.S.A. § 9545(b)(2).

       Defendant invokes the timeliness exception in subsection 9545(b)(l)(iii) to claim he is

entitled to relief in the form of resentencing, alleging that, based on the United States Supreme


                                                  3
Court's decision in Montgomery v. Louisiana,6 he is entitled to resentencing under Alleyne v.

    United States' and Commonwealth v. Valentine,8 because he had received a mandatory sentence,

which, under Pennsylvania law at the time, required only that the facts to determine the

mandatory sentence be submitted to the judge and proved bya preponderance of the evidence.9

Defendant claims that his sentence violated Alleyne because the determination of whether section

9712(a) was satisfied must be made by a fact-finder and proven beyond a reasonable doubt 10

Essentially, Defendant contends that through Montgomery, Alleyne and its Pennsylvania progeny

have created a new constituti~nal right which should be applied retroactively.11

          First, Defendant's reliance on Montgomery is misplaced and does not entitle him to relief.

In Montgomery, the United States Supreme Court held that its decision in Miller v. Alabama                         .

applies retroactively to cases on collateral review. Montgomery v. Louisiana, 136 S.Ct. 718, 736

(2016). Miller held that mandatory life without parole sentences for juvenile homicide offenders

are unconstitutional. Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012). However, the

Montgomery Court's decision has no bearing on Defendant's case because Defendant was

neither sentenced for homicide, nor was he a juvenile at the time he committed his offenses.

Defendant was sentenced for robbery, aggravated assault, and resisting arrest, all of which were

committed after Defendant had reached adulthood. Therefore, Montgomery does not provide



6  Montgomery v. Louisiana, 136 S.Ct. 718 (2016)(beld United States Supreme Court's decision in Miller v.
Alabama, prohibiting mandatory life sentences without parole for juvenile homicide offenders, announced a new
substantive constitutional rule that was retroactive on state collateral review).
7 Alleyne v. United States, 133 S.Ct. 2151 (2013)(beld that under the Sixth Amendment, any fact that increases a

mandatory minimum sentence must be submitted to the jury and found beyond a reasonable doubt).
' Commonwealth v. Valentine, IQI A.3d 801 (Pa.Super. 2014) (held 42 Pa.C.S.A § 9712 is unconstitutional and
non-severable).
9 See 18 Pa.C.S.A. § 9712(b).
10 See Motion for Post-Conviction Collateral Relief, 3/17/16, at page 2.
II See Motion for Post-Conviction Collateral Relief, 3/17/16, at page 2.

                                                         4
Defendant with a basis for PCRA relief.

       Moreover, Defendant's claim under Alleyne does not excuse his lack of timeliness. The

Superior Court has established that Alleyne, and its current Pennsylvania progeny, do not

establish an exception to the PCRA time-bar under 42 Pa.C.S.A. § 9545(b)(l)(iii).     See

Commonwealth v. Miller, 102 A.3d 988, 994 (PaSuper. 2014); see also Commonwealth v.

Riggle, 119 A.3d 1058, 1067 (PaSuper. 2015). In Miller, the Superior Court held that Alleyne

did not meet the new constitutional right exception to the PCRA time bar, as neither the United

States Supreme Court, nor the Pennsylvania Supreme Court, "has held that Alleyne is to be
                                       .
applied retroactively to cases in which the judgment of sentence had become final" Id. at 995.

The Superior Court further held that although Alleyne "implicates the legality of the sentence and

cannot be waived on appeal," the Court must have a basis for jurisdiction in order to review the

claim. Id. Because the defendant could not overcome the time bar, the Court had no jurisdiction

to review his claim. Id at 995-996.

       Here, Defendant filed the instant petition more than one year beyond the date his

judgment of sentence became final. Defendant's judgment became final as of April 26, 2002,

upon expiration of the time to file an appeal to the Superior Court of Pennsylvania. See

Pa.R.A.P. 903(a); the instant PCRA petition was filed March 17, 2016, nearly fourteen years

after his judgment became final. Like the Court in Miller, this Court has no basis for jurisdiction

because Defendant has not overcome the one year time bar.

       Additionally, even if Alleyne had been held to apply retroactively in this type of situation,

the exceptions can excuse untimeliness of a PCRA petition only if it is filed within 60 days of the

date the claim could have been presented.· 42 PaC.S.A. §9545(b)(2). Alleyne was decided on


                                                 5
June 17, 2013, Valentine was decided on October 3, 20.14, and Petitioner's prose petition was

filed on March 17, 2016, well past the 60 day limit for any timeliness exception.12 As such, the

Court is precluded from addressing the merits -of the petition.

         Moreover, for reasons .similar to those outlined in Miller as to why Alleyne is not

retroactive, Valentine also does not apply retroactively to cases on collateral review. Although

the Valentine ruling provides that the portions of the mandatory minimum sentencing statute of

42 PaC.S.A. § 9712 which violate Alleyne are unconstitutional and not severable,13 the

retroactivity of Valentine was not addressed by the Superior Court. Because Valentine has not

been held to apply retroactively to cases in which the judgment of sentence has become final,

that case, like Alleyne, does not provide Defendant with an exception under Section

9545(b)(l)(iii) to the PCRA's timing requirement.

         Furthermore, even assuming that Valentine would qualify as a new constitutional rule,

Defendant is still not entitled to relief. A new rule applies retroactively in a collateral proceeding

only if (1) the rule is substantive or (2) the rule is a "'watershed rule of criminal procedure'

implicating the fundamental fairness and accuracy of the criminal proceeding." Commonwealth

v. Watley, 81 A.3d 108, 117 n.5 (Pa.Super, 2014) (quoting Whorton v. Bockting, 549 U.S. 406,

416. (2007)). Substantive rules are those that decriminalize conduct, see, e.g., Griswold v.

Connecticut, 381 U.S. 479 (1965) or prohibit punishment against a class of persons, see, e.g.,

Atkins v. Virginia, 536 U.S. 304 (2002). Commonwealth v. Hughes, 865 A.2d 274, 308 (Pa

2004). A watershed procedural rule is one that is necessary to prevent an impermissibly large



12 Defendant's claim that his petition is timely because it was filed within 60 days of the ruling in Montgomery v.
Louisiana is without merit because, as discussed previously, Montgomery is inapplicable to Defendant's case.
13 See Valentine, JO I A.3d at 812.

                                                           6
 risk of an inaccurate convictions and "alters our understanding of the bedrock procedural

 elements essential to the fairness of the proceeding." Hughes, 865 A2d at 309 (citation and

 internal quotations omitted).

          Valentine does n?t nieet the criteria of creating a substantive rule or a watershed

procedural rule under the tetroactivity framework. Valentine does not decriminalize Defendant's

conduct, nor does that decision categorically prohibit mandatory sentences against those who

commit crimes of violence with firearms. See Riggle, 119 A3d at 1067 (Alleyne is not a

substantive rule). Therefore, Valentine, does not represent a substantive rule. Furthermore, our

Supreme Court's decision in Commonwealth v, Hopkins" is instructiveas to why Valentine also

does not represent a watershed procedural rule. 15 In declaring mandatory sentences against those

who sell drugs in     a school zones unconstitutionaland non-severable, the Hopkins Court merely
applied severability precedent in construing legislative intent: Hopkins, 117 A.3d at 259. The

fundamental fairness of Defendant's sentencing was not undermined by either the Hopkins or

Valentine decisions, which only did away with mandatory sentencing statutes. Defendant could

have received an identical sentence without regard to the existence of that statute. See Hopkins,

117 A.3d at 262-63 (our Supreme Court observed, "[fjinally, and importantly, our decision today

in no way impacts the ability of the Commonwealth to convict and sentence those dealing in

illegal drugs near our Commonwealth's schools-it merely limits the imposition of a mandatory

minimum sentence for those offenders until our legislature acts to address the constitutional



14
   Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (held 18 Pa.C.S.A. § 6317 is unconstitutional and non-
severable).                                       .            ·
15
   As the Riggle Court astutely noted when it determined that Alleyne did not constitute a watershed procedural rule,
the only rule explicitly recognized by the United States Supreme Court as a watershed criminal procedural rule was
announced in Gideon v. Wainwright, 372 U.S. 335 (1963), i.e., the right to counsel during a felony criminal
prosecution. Riggle, 119 A.3d 1066-67, (citing Whorton v. Bockiing, 549 U.S. 406, 419 (2007)).
                                                          7
requirements imposed by the United States Supreme Court in Alleyne''). Consequently,

Hopkins, and by extension, Valentine, is not a watershed rule entitled to retroactive effect in

Defendant's· collateral PCRA proceeding.

       Therefore, because Montgomery has no bearing on Defendant's case, and because

Defendant's petition has also not establish that the United States Supreme Court or the

Pennsylvania Supreme Court has recognized a new constitutional rule or that either Alleyne or its

Pennsylvania progeny applies retroactively, Defendant has failed to prove a timeliness exception

under subsection 9545(b )(1)(iii) of the PCRA on the basis of a newly-recognized constitutional

right Defendant's petition is, therefore, time barred. Defendant neither pleads an exception to

the time bar nor sets forth facts that invoke an exception. As such, this Court is precluded from

addressing the merits of the petition. Defendant is not entitled to post-conviction relief, and no

purpose would be served by any further proceedings. Defendant is hereby provided notice of

this Court's intent to dismiss his petition without a hearing. Defendant may respond within

twenty (20) days from the date of this Notice to demonstrate that he is entitled to relief under the

PCRA. Accordingly, I enter the following:




                                                 8
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY,_PENNSYLVANIA
         .                                 CRIMINAL

COMMONWEALTH OF PENNSYLVANIA

                    v.                                N'os.4301,4302,4303,4304,4305-2000

N'OEL CARLOS RIVERA


                                              ORDER
                              .!)
       AND N'OW, this 2!{_ day of June, 2016, upon consideration of Petitioner Noel Carlos

Rivera's prose PCRA petition, filed March 17, 2016, it is hereby ORDERED and DECREED

that the Petition is denied. Petitioner is hereby given notice that the Court, pursuant to

Pa.R.Crim.P. 907, intends to dismiss his Post-Conviction Collateral Relief Petition without a

hearing unless Petitioner shall, within twenty (20) days of the date of this Order and Notice,

show good cause why the petition should not be dismissed.



11 certffy this document fo be {i(~d
 iin the Lancaster County Office Gif
·the Clerk of the Courts.

                                                      HOWARD F. K.NIS
                                                      JUDGE
                   Jacque{yn E. Ptursich
                      Cl.ecKo( Courts
AITEST:
Copies to:

N'oel Carlos Rivera, ID# EQ9052, SCI Mahanoy, 301 Morea Rd., Frackville, PA 17932
               (Via Certified Mail, Return Receipt Requested)

Office of the District Attorney
