J-S09039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

NOEL PEREZ-TORRES

                            Appellant                No. 908 MDA 2015


                   Appeal from the PCRA Order May 5, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0000316-2011,
                                        CP-06-CR-0000317-2011,
                                         CP-06-CR-0000319-2011


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 09, 2016

        Appellant Noel Perez-Torres appeals from the order entered in the

Berks County Court of Common Pleas, which dismissed his petition for relief

filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On March 21, 2011, Appellant pled guilty to three counts of possession

with intent to deliver (“PWID”)2 marijuana on three separate docket

numbers.3     The Commonwealth sought the mandatory minimum sentence

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1
    42 Pa.C.S. § 9541-9546.
2
    35 Pa.C.S. § 780-113(a)(30).
3
  Appellant pled guilty to one count of PWID at CP-06-CR-0000316-2011,
one count of PWID at CP-06-CR-0000317-2011, and one count of PWID at
CP-06-CR-0000319-2011.
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pursuant to 18 Pa.C.S. § 6317,4 and the trial court imposed concurrent

sentences of three (3) to eight (8) years’ incarceration on each count.

Appellant did not file a direct appeal.

       On February 16, 2012, Appellant filed a pro se PCRA petition.        The

PCRA court appointed counsel, who filed a petition to withdraw along with a

no-merit letter pursuant to Turner5 and Finley.6           On June 12, 2012, the

PCRA court dismissed Appellant’s first petition and granted counsel’s petition

to withdraw. Appellant timely filed a pro se notice of appeal, but he did not

comply with the PCRA court order directing him to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and his

appeal was ultimately dismissed for failure to comply with Pa.R.A.P. 3517.

       On February 12, 2015, Appellant filed his second PCRA petition, which

is the subject of the present appeal.          On March 24, 2015, the PCRA court

issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss

Appellant’s petition without a hearing. On April 9, 2015, Appellant filed an

____________________________________________


4
  Under this statute, a defendant must be sentenced to a minimum sentence
of at least two years of total confinement “if the [PWID] occurred within
1,000 feet of the real property on which is located a public, private or
parochial school or a college or university or within 250 feet of the real
property on which is located a recreation center or playground or on a school
bus…” 18 Pa.C.S.§ 6317.
5
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
6
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).




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objection to the Pa.R.Crim.P. 907 notice. On May 5, 2015, the PCRA court

dismissed Appellant’s petition without a hearing.7            On May 28, 2015,

Appellant filed a timely notice of appeal. On June 1, 2015, the PCRA court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on June 17,

2015. Appellant raises the following issue for our review:

           DID THE PCRA COURT ABUSE ITS DISCRETION AND ERR
           IN FINDING THAT THE SECOND PCRA PETITION WAS NOT
           TIMELY FILED UNDER THE 60 DAY RULE; AND IN FINDING
           THAT PETITIONER’S GUILTY PLEA & SENTENCE WAS
           ILLEGAL AND UNCONSTITUTIONALLY OBTAINED, IN
           VIOLATION OF THE DUE PROCESS CLAUSE OF THE
           UNITED STATES CONSTITUTIONAL AND THE PROVISIONS
           OF THE PENNSYLVANIA CONSTITUTIONAL?

Appellant’s brief at 5 (verbatim).

        Before we address the merits of Appellant’s claims, we must determine

whether his PRCA petition was timely.            The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).             “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”         Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA


____________________________________________


7
    This order was dated May 5, 2015 and filed May 6, 2015.



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timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

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days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition   to    avoid   “serial   requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                   A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”         Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006). Further, in a second or subsequent post-conviction proceeding,

“all issues are waived except those which implicate a defendant’s innocence

or which raise the possibility that the proceedings resulting in conviction

were so unfair that a miscarriage of justice which no civilized society can

tolerate occurred.”       Commonwealth v. Williams, 660 A.2d 614, 618

(Pa.Super.1995).

       Here, Appellant’s judgment of sentence became final on April 21,

2011, when his time to appeal to this Court expired. See Monaco, supra.

Accordingly, he had until April 21, 2012 to file a timely PCRA petition. 42

Pa.C.S. § 9545(b)(1).      Appellant filed the instant pro se PCRA petition on

February 12, 2015.        Thus, his PCRA petition is facially untimely, and we

must determine whether Appellant has pled and proved any of the

exceptions to the PCRA time limitation. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).




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      Appellant attempts to invoke the new constitutional right exception to

the PCRA time bar by arguing that Alleyne v. United States,___ U.S. ___,

133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013) applies retroactively to his

case. In Alleyne, the Supreme Court of the United States held that “[f]acts

that increase the mandatory minimum sentence… must be submitted to the

jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2158.

      Appellant was sentenced to the mandatory minimum under 18

Pa.C.S.§ 6317, which was held unconstitutional pursuant to Alleyne in

Commonwealth v. Hopkins, 117 A.3d 247, 263 (Pa.2015). However, to

invoke the constitutional right exception to the PCRA time limitation, the

petitioner must show that the constitutional right established applies

retroactively. 42 Pa.C.S. § 9545(b)(1)(iii). “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.”

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

reargument denied, (Pa.Super. Dec. 5, 2014).

      In Miller, this Court observed that “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.”

102 A.3d at 995. Because neither the Supreme Court of Pennsylvania nor

the Supreme Court of the United States have held that Alleyne applies to


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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 995.8

       Because none of the PCRA time limitation exceptions apply, Appellant’s

petition remains time-barred, and the PCRA court properly denied it.

Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




____________________________________________


8
   Because Appellant has failed to invoke an exception to the PCRA time
limitation, we need not determine whether there is merit to Appellant’s claim
that he filed his petition within 60 days of learning that this constitutional
right had been established.



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