J-S23016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MIGUEL ALICEA

                            Appellant                 No. 2640 EDA 2015


                   Appeal from the PCRA Order July 29, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0902921-1996


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                 FILED JUNE 16, 2016.

        Miguel Alicea appeals, pro se, from the order entered July 29, 2015, in

the Philadelphia County Court of Common Pleas denying his petition for writ

of habeas corpus, which the court construed to be a third petition for

collateral relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Alicea seeks relief from the judgment of sentence of

an aggregate 17½ to 35 years’ imprisonment imposed on October 6, 1999,

following his convictions for involuntary deviate sexual intercourse, incest,

and corruption of a minor.1 On appeal, Alicea argues the PCRA court erred


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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3123, 4302, and 6301, respectively.
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in dismissing his petition because his sentence is a legal nullity pursuant to

Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).2 We affirm.

       The facts underlying this appeal are well known to the parties, and

were summarized by a panel of this Court in a prior unpublished decision

affirming the judgment of sentence. Commonwealth v. Alicea, 778 A.2d

1237 [1197 EDA 2000] (Pa. Super. 2001) (unpublished memorandum).

Therefore, we need not recite them herein, but only mention that Alicea’s

convictions stem from the long-term sexual assault of his minor grandson.

The Pennsylvania Supreme Court denied allowance of appeal on October 9,

2001. Commonwealth v. Alicea, 788 A.2d 371 (Pa. 2001).



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2
   In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, supra, 133
S.Ct. at 2155.       In interpreting that decision, the courts of this
Commonwealth have determined that most of our mandatory minimum
sentencing statutes are unconstitutional because the language of those
statutes “permits the trial court, as opposed to the jury, to increase a
defendant’s minimum sentence based upon a preponderance of the
evidence” standard. Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.
Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). See
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating 18
Pa.C.S. § 6317); Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super.
2014) (en banc), (invalidating 18 Pa.C.S. § 7508), appeal denied, 121 A.3d
496 (Pa. 2015); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014) (invalidating 18 Pa.C.S. § 9718), appeal granted, 121 A.3d 433 (Pa.
2015). Further, our courts have held that the unconstitutional provisions of
the mandatory minimum statutes are not severable from the statute as a
whole. Hopkins, supra, 117 A.3d at 262; Newman, supra, 99 A.3d at
101.



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      On January 3, 2003, Alicea filed his first PCRA petition, claiming trial

counsel was ineffective for failing to advise him regarding what to say at his

sentencing hearing. The PCRA court dismissed his petition on October 29,

2004. A panel of this Court affirmed the order on October 5, 2006, and the

Pennsylvania Supreme Court denied his petition for allowance of appeal on

March 20, 2007.     Commonwealth v. Alicea, 913 A.2d 937 [3249 EDA

2004] (Pa. Super. 2006) (unpublished memorandum), appeal denied, 919

A.2d 954 (Pa. 2007).

      On September 15, 2010, Alicea filed a petition for writ of habeas

corpus.   Following review and proper Pa.R.Crim.P. 907 notice, the court

treated the filing as a PCRA petition and dismissed it as untimely filed on

February 3, 2014.

      Subsequently, on January 15, 2015, Alicea filed the present pro se

petition, again styled as a petition for writ of habeas corpus, in which he

asserted his mandatory minimum sentence, imposed pursuant to 18 Pa.C.S.

§ 9718, is a nullity in light of Alleyne, supra. The PCRA court treated the

document as a PCRA petition and on June 15, 2015, it issued a Rule 907

notice of its intent to dismiss the petition without first conducting an

evidentiary hearing. Specifically, the court found the petition was untimely

filed and did not invoke an exception to the timeliness provisions of the




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PCRA,3 and therefore, it did not have jurisdiction to review the matter.

Alicea filed a response to the Rule 907 notice on June 24, 2015.

Nevertheless, on July 29, 2015, the PCRA court denied Alicea’s petition. This

appeal followed.4

       In his sole issue on appeal, Alicea complains that his sentence is a

nullity because the applicable mandatory sentencing statute, Section 9718,

has been ruled facially unconstitutional.        Alicea’s Brief at 7.   See Wolfe,

supra (concluding Section 9718 was facially unconstitutional due to the

mandatory minimum scheme). Relying on Alleyne, supra, and its progeny,

Alicea states his “sentence cannot stand, as he is due a penalty crafted

without any regard to the unconstitutionally infirm statute.” Alicea’s Brief at

8. Moreover, he states:

       The question of retroactivity has also been answered, as an
       unconstitutional statute is ineffective for any purpose, because
       it’s [sic] unconstitutionality dates from the time of it’s [sic]
       enactment, not merely from the date of the decision holding it
       so.      As the statutes have clearly been held to be
       unconstitutional, and have been so since the date of their
       enactment, [Alicea] is not subject to any timeliness constraints,
       nor is a retroactivity analysis necessary. The only remedy
       available to this [C]ourt is to vacate the sentence and remand
       for re-sentencing absent the aggravating factor in the sentence.

Id. at 10-11 (citation omitted).
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3
    See 42 Pa.C.S. 9545(b)(i-iii).
4
  The PCRA court did not order Alicea to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, on October
20, 2015, the court issued an opinion under Pa.R.A.P. 1925(a).



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        Preliminarily, we note the court properly construed Alicea’s habeas

petition to be a PCRA petition. The PCRA clearly states it is “the sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies …, including habeas corpus and coram nobis.” 42 Pa.C.S.

§ 9542. The writ of habeas corpus does exist under Pennsylvania law, but

“only    in   cases   in   which    there      is   no   remedy   under   the   PCRA.”

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998). Therefore, “if

the underlying substantive claim is one that could potentially be remedied

under the PCRA, that claim is exclusive to the PCRA.” Commonwealth v.

Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004), cert. denied, 546 U.S. 909

(2005) (emphasis removed).5               Accordingly, because “application of a

mandatory minimum sentence gives rise to illegal sentenc[ing] concerns,” 6

the court properly reviewed Alicea’s petition under the rubric of the PCRA.

        Turning now to the merits of the appeal, our standard of review of an

order denying PCRA relief is well-established. We must determine “whether

the record supports the PCRA court’s determination and whether the PCRA

court’s decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d


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5
     See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(“Phrased differently, a defendant cannot escape the PCRA time-bar by
titling his petition or motion as a writ of habeas corpus.”) (footnote omitted).
6
   Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en
banc).



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1, 4 (Pa. Super. 2014) (internal citations omitted).         Furthermore, we

emphasize:

             A PCRA court is only required to hold a hearing where the
      petition, or the Commonwealth’s answer, raises an issue of
      material fact. When there are no disputed factual issues, an
      evidentiary hearing is not required. If a PCRA petitioner’s offer
      of proof is insufficient to establish a prima facie case, or his
      allegations are refuted by the existing record, an evidentiary
      hearing is unwarranted.

Commonwealth v. Eichinger, 108 A.3d 821, 849 (Pa. 2014) (internal

citations omitted).

      In the present case, the PCRA court determined Alicea’s petition was

untimely filed. We agree. Alicea’s sentence was final on January 7, 2002,

90 days after the Pennsylvania Supreme Court denied review, and Alicea

failed to file a writ of certiorari in the United States Supreme Court. See 42

Pa.C.S. § 9545(b)(3) (stating “a judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States … , or at the expiration of time for seeking the review.”); see

also U.S. Sup.Ct. R. 13.1.      The statute explicitly requires that a PCRA

petition must be filed “within one year of the date the judgment becomes

final[.]”   42 Pa.C.S. § 9545(b)(1).    As such, Alicea’s present petition is

manifestly untimely.

      Nevertheless, as noted above, an otherwise untimely petition is not

time-barred if a petitioner pleads and proves the applicability of one of three

time-for-filing exceptions:


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      (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). Further, any petition invoking one of these

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

been presented.” Id. at § 9545(b)(2).

      Here, Alicea does not invoke any exception. He maintains his issue

relates to the legal nullity of his sentence and therefore, the exceptions do

not apply. However, this argument has no support under the PCRA.

      The mandate of the statute is clear:

      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. Commonwealth v. Abu–Jamal,
      574 Pa. 724, 833 A.2d 719, 723–24 (2003); Commonwealth v.
      Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000). The timeliness
      requirements apply to all PCRA petitions, regardless of the
      nature of the individual claims raised therein. Murray, at 203.




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Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).7                       This includes an

Alleyne claim challenging the legality of a sentence. See Commonwealth

v. Miller, 102 A.3d 988, 995 (Pa. 2014).

       Furthermore, we find Alicea’s argument fails for several reasons. First,

Alicea’s claim does not touch upon the governmental interference exception

as set forth in Section 9545(b)(1)(i) because he does not contend the

government obstructed his right to present the claim.

       Second, this Court has “expressly rejected the notion that judicial

decisions can be considered newly-discovered facts which would invoke the

protections afforded by section 9545(b)(1)(ii).”                   Commonwealth v.

Cintora, 69 A.3d 759, 763 (Pa. Super. 2013), appeal denied, 81 A.3d 75

(Pa. 2013). Even if we were to find that a judicial decision could constitute a

newly discovered fact, Alicea has failed to establish he filed his petition

“within 60 days of the date the claim could have been presented” as

required by 42 Pa.C.S. § 9545(b)(2). “[W]e have previously said that ‘the

sixty-day period begins to run upon the date of the underlying judicial

decision’”    not    when     the    petitioner   first   learns    of    the   decision.

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (citation

omitted). Alleyne (filed on June 17, 2013) was decided more than 60 days

prior to the date Alicea filed his PCRA petition. Consequently, Alicea has not
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7
  See also Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999);
Commonwealth v. Jackson, 30 A.3d 516 (Pa. Super. 2011).



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met his burden of establishing the newly discovered facts exception to the

one-year filing requirement.

       Third, with respect to the new constitutional right exception set forth

at Subsection 9545(b)(1)(iii), we note that in Commonwealth v. Miller,

102 A.3d 988 (Pa. Super. 2014), a panel of this Court held that an Alleyne

claim fails to satisfy the “new constitutional right exception to the time-bar”

codified at Section 9545(b)(1)(iii) because neither the United States or

Pennsylvania Supreme Court has held that Alleyne is to be applied

retroactively. Miller, supra, 102 A.3d at 995. As such, Alleyne does not

invalidate a mandatory minimum sentence when presented in an untimely

PCRA petition, such as the case here. Id.8 See Commonwealth v. Jones,

54 A.3d 14, 17 (Pa. 2012) (“The timeliness requirements apply to all PCRA

petitions, regardless of the nature of the individual claims raised therein.”).
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8
   In concluding Alleyne does not satisfy the new retroactive constitutional
right exception to the PCRA’s one year time bar, 42 Pa.C.S. §
9545(b)(1)(iii), the Miller Court explained:

       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.         This is fatal to Appellant’s argument
       regarding the PCRA time-bar. This Court has recognized that a
       new rule of constitutional law is applied retroactively to cases on
       collateral review only if the United States Supreme Court or our
       Supreme Court specifically holds it to be retroactively applicable
       to those cases.

Id. at 995 (citations omitted) (emphasis supplied).



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      In conclusion, we agree with the conclusion of the PCRA court that

Alicea’s petition was untimely filed, and he failed to establish the

applicability of a time-for-filing exception.   Accordingly, there were no

factual issues in dispute necessitating an evidentiary hearing, and we find no

error on the part of the PCRA court in dismissing Alicea’s petition without

first conducting a hearing.   See Eichinger, supra.     Therefore, we affirm

the order dismissing Alicea’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2016




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