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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
JEAN C. PAGAN-ROSARIO                       :
                                            :
                          Appellant         :
                                            :     No. 1285 WDA 2015

                  Appeal from the Order Entered August 5, 2015
          in the Court of Common Pleas of Erie County Criminal Division
                        at No(s): CP-25-CR-0003329-2011

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED APRIL 6, 2016

        Appellant, Jean C. Pagan-Rosario, appeals pro se from the order

entered in the Erie County Court of Common Pleas dismissing his third

petition1 filed pursuant to the Post Conviction Relief Act 2 (“PCRA”).      He

argues the United States Supreme Court’s decision in Alleyne v. United

States, 133 S. Ct. 2151 (2013) entitles him to relief. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
  Appellant titled his filing “motion to vacate judgment of sentence, and/or in
the alternative petition to set aside his mandatory minimum sentence
pursuant to Alleyne v. United States, nunc pro tunc.”                 Appellant
challenged the legality of his sentence; therefore, the PCRA court properly
considered his motion as a PCRA petition. See 42 Pa.C.S. § 9543(a)(2)(vii).
2
    42 Pa.C.S. §§ 9541-9546.
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        On September 9, 2012, Appellant pleaded guilty to possession with

intent to deliver a controlled substance.3 On November 20, 2012, the trial

court imposed a mandatory sentence of 60 to 120 months’ imprisonment

pursuant to 42 Pa.C.S. § 9712.1(a).4 Appellant did not file a direct appeal.

On January 22, 2013, Appellant filed his first, timely PCRA petition. 5     The

PCRA court appointed counsel, whom the court permitted to withdraw. 6 The

PCRA court dismissed the petition on May 28, 2013, and Appellant did not

file an appeal. Appellant filed his second, timely PCRA petition, pro se, on

October 15, 2013. Appellant retained private counsel, who filed an amended

petition on October 23, 2013.     The PCRA court dismissed the petition on

November 19, 2014, and this Court affirmed. Commonwealth v. Pagan-

Rosario,     220   WDA   2014   (Pa.   Super.   Oct.   6,   2014)   (unpublished

memorandum).



3
    35 P.S. § 780-113(a)(30).
4
  In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
this Court held that the decision in Alleyne rendered the mandatory
minimum sentence at Section 9712.1 unconstitutional. Newman, 99 A.3d
at 103. The Newman Court observed that the defendant was entitled to
retroactive application because his “case was still pending on direct appeal
when Alleyne was handed down[.]” Id. at 90 (emphasis added).
5
  Appellant filed a “motion for modification of sentence” which the PCRA
court treated as a timely PCRA petition.
6
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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        On July 7, 2015,7 Appellant filed the petition that gives rise to the

instant    appeal.     Therein,   he   argued,   inter   alia,   his   sentence   is

unconstitutional under Alleyne.         See Appellant’s Pet., 7/7/15, at 3

(unpaginated). The PCRA court issued a notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907 and an accompanying opinion on July 22, 2015.

Appellant filed a reply on August 3, 2015, and the PCRA court dismissed the

petition on August 5, 2015.       Appellant timely appealed and filed a court-

ordered Pa.R.A.P. 1925(b) statement.

        On appeal, Appellant raises three issues,8 but we discern that the

gravamen of his argument is that the PCRA court erred when it determined


7
  The petition was filed on July 9th; however the certified record indicates a
post-marked date of July 7th. Therefore, we consider the petition filed on
that date. See Commonwealth v. Bradley, 69 A.3d 253, 254 n.3 (Pa.
Super. 2013).
8
    Appellant’s questions presented, verbatim, read:

              I. Was petitioner unconstitutionally denied by a state
              court, the retroactive relief and application of U.S.
              Supreme Court decisions, “United States v. Alleyne,
              Greer, Johnson, Shavers, Booker; denied the
              application of Marbury v. Madison, Testa v. Katt; the
              Harper Rule pursuant to Article VI. Clause 2. “The
              Supremacy Clause,” nunc pro tunc?

              II. Whether the state court by its refusal to apply the
              decisions Alleyne-Apprendi, via the Supremacy
              Clause to Appellant’s case nunc pro tunc, was
              tantamount to a state court committing a
              unconstitutional structural defect?

              III. Whether Appellant’s sentence is illegal?



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that Appellant was not entitled to resentencing based on Alleyne.9       See

Appellant’s Brief at 7-15.   He posits, “the Supreme Court’s [d]ecision of

Alleyne is . . . both binding on [e]very Pennsylvania/State Court, and is to

be applied retroactively to every case that comes before it. . . .       It is

reaffirmed herein, that this State Court cannot decline jurisdiction.” Id. at

11.   We disagree.

      Our review is limited to whether the findings of the PCRA court are

supported by the record and free of legal error. Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).        Our standard of review over the

PCRA court’s legal conclusions is de novo. Id.

      However,

                 [b]efore we may address the merits of Appellant’s
            arguments, we must first consider the timeliness of
            Appellant’s PCRA petition because it implicates the
            jurisdiction of this Court and the PCRA court.
            Pennsylvania law makes clear that when a PCRA
            petition is untimely, neither this Court nor the trial
            court has jurisdiction over the petition. . . .
            However, 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.[] §

Appellant’s Brief at 3 (underlining omitted).
9
  As Appellant is pro se, we may liberally construe the argument he raises.
Commonwealth v. Blakeney, 108 A.3d 739, 766 (Pa. 2014), cert. denied,
135 S. Ct. 2817 (2015). However, “pro se status confers no special benefit
upon a litigant, and a court cannot be expected to become a litigant’s
counsel or find more in a written pro se submission than is fairly conveyed in
the pleading.” Id. Appellant’s brief is largely incoherent. We address the
argument fairly conveyed in his brief. See id.



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          9545(b)(1)(i), (ii), and (iii) are met.       The PCRA
          provides, in relevant part, as follows.

              § 9545. Jurisdiction and proceedings

                                      …

              (b) Time for filing petition.—

                 (1) Any petition under this subchapter,
                 including a second or subsequent petition,
                 shall be filed within one year of the date the
                 judgment becomes final, unless the petition
                 alleges and the petitioner proves that:

                    (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 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 chapter
                    and has been held by that court to apply
                    retroactively.

                 (2) Any petition invoking an exception
                 provided in paragraph (1) shall be filed
                 within 60 days of the date the claim could
                 have been presented.

                                       …

          42 Pa.C.S.[] § 9545(b).


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Id. at 992-93 (quotation marks and some citations omitted).

      This Court has considered whether Alleyne entitles an untimely PCRA

petitioner to relief under Section 9545(b)(1)(iii):

               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.

Miller, 102 A.3d at 995 (citations omitted).

      Instantly, the trial court sentenced Appellant on November 20, 2012,

and he did not file a direct appeal. Therefore, his judgment of sentence was

final on December 20, 2012.        See 42 Pa.C.S. § 9545(b)(2); Pa.R.A.P.

903(a). Appellant filed the instant petition on July 7, 2015, and it is facially

untimely.     Appellant’s position is that Alleyne applies retroactively.

Appellant’s Brief at 8.   However, Miller held that Alleyne does not meet

Section 9545(b)(1)(iii)’s exception to the time-bar. Miller, 102 A.3d at 995.

Therefore, the PCRA court correctly dismissed Appellant’s untimely PCRA

petition, and we affirm. See id. at 992, 995.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2016




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