J-S28037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS HERNANDEZ

                            Appellant                 No. 2014 MDA 2014


                Appeal from the PCRA Order November 6, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CR-67-CR-0000737-2006


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                              FILED JULY 10, 2015

        Luis Hernandez appeals from the trial court’s order denying his third

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

§§ 9541-9546, as untimely. Upon review, we affirm.

        On November 8, 2006, Hernandez was sentenced to an aggregate

term of 14-28 years’ incarceration,1 after having been convicted by a jury of

robbery (F-1)2 and aggravated assault (F-1).3             Hernandez filed an

unsuccessful post-sentence motion on November 20, 2006. On December 4,

2006, Hernandez filed a notice of appeal; our Court affirmed his judgment of

____________________________________________


1
    Hernandez was also ordered to pay $1,600 in restitution to his victim.
2
    18 Pa.C.S. § 3701(a)(1)(ii).
3
    18 Pa.C.S. § 2702(a)(2).
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sentence on February 27, 2008.             Hernandez filed two unsuccessful PCRA

petitions in August 2008 and November 2009.             Hernandez filed collateral

appeals from the orders denying PCRA relief; our court affirmed the PCRA

court orders in 2011 and 2012. On October 31, 2014, Hernandez filed the

instant PCRA petition.       On November 14, 2014, the trial court denied the

petition, without a hearing, concluding it was untimely.

       Instantly, Hernandez’s sentence became final on March 27, 2008,

when the time within which he had to file a petition for allowance of appeal

with the Pennsylvania Supreme Court expired.               See Pa.R.A.P. 1113.

Hernandez filed his petition on October 31, 2014, more than six and a half

years after that date; therefore, his petition is facially untimely.

       Hernandez, however, contends that his petition, which raises an

Alleyne4 issue, falls within the “new constitutional right” exception to the

PCRA timeliness requirements. See 42 Pa.C.S. § 9545(b)(1)(iii). We note

that a petition invoking an exception to the PCRA's time bar must be filed

within sixty days of the date the claim could first have been presented. See

42 Pa.C.S. § 9545(b)(2).            The United States Supreme Court decided

Alleyne on June 17, 2013. Hernandez did not file the instant PCRA petition
____________________________________________


4
  In Alleyne v. United States, 133 S.Ct. 2151 (2013), a case concerning
the application of a federal mandatory minimum statute, the Supreme Court
held that any fact that triggers an increase in the mandatory minimum
sentence for a crime is necessarily an element of the offense. Id. at 2163-
64.




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until October 13, 2014 – more than sixteen months after Alleyne was

decided. As such, Hernandez did not file his claim within the time prescribed

under section 9545(b)(2).         See Commonwealth v. Boyd, 923 A.2d 513,

517 (Pa. Super. 2007) ("With regard to an after-recognized constitutional

right, this Court has held that the sixty-day period begins to run upon the

date of the underlying judicial decision."). Accordingly, we find that

Hernandez’s petition is untimely, does not properly invoke a timeliness

exception under section 9545(b), and that the trial court correctly denied his

petition for lack of jurisdiction.5 Robinson, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015

____________________________________________


5
  Contrary to Hernandez’s belief that the trial court applied the deadly
weapon enhancement to his sentence, the record reflects that it was not
applied to his sentence. Moreover, in Commonwealth v. Ali, 2015 PA
Super 45 (Pa. Super. 2015), our Court recently held that because an
enhancement simply “directs a sentencing court to consider a different range
of potential minimum sentences,” id. at *36, and does not mandate a
particular sentence, the parameters of Alleyne do not apply to
enhancement sentences. Therefore, even if the trial court had applied the
deadly weapon enhancement to Hernandez’s sentence, it would not implicate
the concerns in Alleyne.



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