J-S31017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MARCELO RIVERA

                            Appellant                   No. 1342 MDA 2015


                  Appeal from the Order Entered July 9, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001443-2007
                            CP-38-CR-0001446-2007
                            CP-38-CR-0001447-2007
                            CP-38-CR-0001520-2007


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                   FILED APRIL 29, 2016

        Marcelo Rivera appeals pro se from the order entered July 9, 2015, in

the Court of Common Pleas of Lebanon County, dismissing as untimely his

third petition filed pursuant to the Pennsylvania Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546.               In this appeal, Rivera claims his

sentence is illegal under Alleyne v. United States, 133 S. Ct. 2151 (2013),

because the court imposed a mandatory minimum sentence pursuant to 18

Pa.C.S. § 7508.      See Rivera’s Supplemental Argument to Brief, at 1.1      In
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  In his original appellate brief, Rivera presents three issues: (1) Whether
the Judge was proper in the statement he made before sentencing, (2)
Whether there was a conflict of interest, and (3) Whether trial counsel was
(Footnote Continued Next Page)
J-S31017-16



support of this argument, Rivera cites two recent cases: Commonwealth v.

Hopkins, 117 A.3d 247 (Pa. 2015), filed June 15, 2015, and Montgomery

v. Louisiana, 136 S. Ct. 718 (2016), filed January 25, 2016. See Rivera’s

Supplemental Argument to Brief, id. Based upon the following, we affirm.

      The background of this case has been previously set forth by this

Court:

      A prior panel of this Court summarized the relevant facts and
      procedural history of this case as follows.

          On March 27, 2008, [Rivera] pled guilty to various drug
          offenses under four docket numbers. On May 21, 2008,
          the court sentenced [Rivera] to an aggregate term of
          twelve to twenty-six years’ imprisonment. He did not file
          a direct appeal. [Rivera] filed a timely pro se PCRA
          petition on November 11, 2008. The PCRA court returned
          this petition with the direction that he provide more facts.
          On December 18, 2008, [Rivera] filed a pro se amended
          PCRA [petition], which was dismissed without a hearing
          on March 2, 2009. The following day, the court appointed
          counsel. [Rivera] then filed a pro se notice of appeal on
          March 13, 2009, which he requested to withdraw three
          days later. Counsel for [Rivera] filed a formal request to
          withdraw his notice of appeal on June 3, 2009.

          On December 23, 2009, [Rivera] filed a counseled motion
          to reinstate his appellate rights from the denial of his first
          PCRA petition. The PCRA court denied the motion, but on
                       _______________________
(Footnote Continued)

ineffective for failing to give a “Garcia” [United States v. Garcia, 517 F.2d
272 (5th Cir. 1975)] hearing. See Rivera’s Brief at 4. These issues,
however, were not presented in the underlying PCRA petition. Rather, the
PCRA petition claimed Rivera’s sentence was unconstitutional and illegal
under Alleyne, and counsel was ineffective for failing to raise meritorious
issues. See Rivera’s PCRA petition, 6/3/2015, at 4.




                                            -2-
J-S31017-16


         appeal, this Court found the PCRA court erred in not
         providing [Rivera] with counsel for his first pro se PCRA
         petition. This Court remanded the case for counsel to
         amend [Rivera’s] first PCRA petition.

         [Rivera’s] amended PCRA petition, filed on November 15,
         2010, claimed ineffective assistance of counsel for failure
         to provide an interpreter at the guilty plea hearing, and
         for failure to advise him of the outcomes and penalties in
         pleading guilty. A hearing was held on February 25, 2011,
         at which the PCRA court heard testimony from both
         [Rivera] and trial counsel. The court dismissed the
         petition and [Rivera] filed a timely notice of appeal on
         March 8, 2011.
           2
             Counsel claimed that she did not receive notice of
           the March 2, 2009 dismissal of [Rivera’s] first PCRA
           petition and therefore inadvertently missed the filing
           deadline for an appeal. [Rivera’s] Brief at 5-6.

     Commonwealth v. Rivera, 37 A.3d 1230 (Pa. Super. 2011)
     (unpublished     memorandum)       (footnote   in     original).
     Subsequently, this Court affirmed the PCRA court’s dismissal of
     [Rivera’s] PCRA petition. Id.

     On January 13, 2012, [Rivera] filed the instant PCRA petition,
     and a hearing was held on November 19, 2012. … [T]he PCRA
     court denied [Rivera’s] PCRA petition by order and opinion. On
     May 7, 2013, [Rivera] filed a timely notice of appeal.

Commonwealth v. Rivera, 97 A.3d 808 (Pa. Super. 2014) (unpublished

memorandum, at 2–3) (footnote omitted), appeal denied, 99 A.3d 925 (Pa.

2014).   On February 20, 2014, this Court affirmed the denial of Rivera’s

second PCRA petition. See id.




                                    -3-
J-S31017-16


       Rivera filed the present PCRA petition — his third — on June 3, 2015.

The PCRA court denied the petition on July 10, 2015, finding the petition was

untimely. This appeal followed.2

       The principles that guide our review are well settled:

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court’s
       findings are supported by the record and without legal error. Our
       review of questions of law is de novo.

Commonwealth v. Edminston, 65 A.3d 339, 345 (Pa. 2013) (citations

omitted).

       Generally, a PCRA petition must be filed within one year from the
       date a judgment becomes final. 42 Pa.C.S. § 9545(b)(1). There
       are three exceptions to this time requirement: (1) interference
       by government officials in the presentation of the claim; (2)
       newly discovered facts; and           (3) an after-recognized
       constitutional right.  42 Pa.C.S. § 9545(b)(1)(i-iii). When a
       petitioner alleges and proves that one of these exceptions is
       met, the petition will be considered timely. A PCRA petition
       invoking one of these exceptions must be filed within 60 days of
       the date the claims could have been presented. The timeliness
       requirements of the PCRA are jurisdictional in nature and,
       accordingly, a PCRA court cannot hear untimely petitions.


____________________________________________


2
   Rivera timely complied with the August 6, 2015 order of the PCRA court to
file a statement of errors complained of on appeal within 21 days, pursuant
to Pa.R.A.P. 1925(b). Rivera placed the concise statement in the hands of
prison officials for mailing no later than August 25, 2015, as evidenced by
the postmark on the envelope included with the statement in the certified
record. See Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (explaining that pursuant to the “prisoner mailbox rule,” we
deem a document filed on the day it is placed in the hands of prison
authorities.). Rivera’s concise statement raised three claims: (1) layered
ineffectiveness of counsel, (2) illegal sentence, and (3) merger.



                                           -4-
J-S31017-16



Commonwealth v. Brandon, 51 A.3d 231, 233–234 (Pa. Super. 2012)

(citations and quotations omitted).

       At the outset, we note that Rivera’s judgment of sentence became

final on June 20, 2008. See Commonwealth v. Rivera, 97 A.3d 808 (Pa.

Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014). Based on our review,

we conclude the PCRA court correctly determined that the present petition is

untimely and that Rivera has not satisfied any exception to the PCRA time

bar.

       We agree with the PCRA court that Rivera’s reliance on Alleyne to

satisfy the PCRA time-bar exception set forth at 42 Pa.C.S. § 9545(b)(1)(iii)

— “a constitutional right that was recognized by the Supreme Court of the

United States … after the time period provided in [section 9545(b)(1)] and

has been held by that court to apply retroactively” — is unavailing. As the

PCRA court pointed out, (1) “Alleyne was decided on June 17, 2013;

[Rivera] filed his petition nearly two years later,” 3 and (2) “Moreover,

Alleyne cannot be applied retroactively to cases in which the judgment of

sentence has become final.” PCRA Court Opinion, supra, at 7 and n.1, citing

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


____________________________________________


3
  See 42 Pa.C.S. § 9545(b)(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.”) (emphasis added).



                                           -5-
J-S31017-16


     The recent cases cited by Rivera provide no basis upon which to

disturb the PCRA court’s decision.    First, Rivera’s reliance on Hopkins,

supra, is misplaced. In Hopkins, the Court held that under Alleyne, the

mandatory minimum sentencing scheme set forth in 18 Pa.C.S. § 6317

(“Drug-free school zones”) is unconstitutional in its entirety. See Hopkins,

117 A.3d at 262. We note that Hopkins was decided on direct appeal. See

id. at 249.   Therefore, Hopkins did not address whether Alleyne was

retroactive to cases on collateral review.   As such, Rivera cannot rely on

Hopkins to establish the statutory exception to the PCRA time bar for a new

retroactive constitutional right exception, 42 Pa.C.S. § 9545(b)(1)(iii).   In

addition, Rivera cannot rely on Hopkins to satisfy the statutory exception

for previously unknown facts, 42 Pa.C.S. § 9454(b)(1)(ii), since “[o]ur

Courts have 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).

     Furthermore, Montgomery v. Louisiana, supra, has no bearing on

Rivera’s case. In Montgomery v. Louisiana, the United States Supreme

Court held that its decision in Miller v. Alabama, 132 S. Ct. 2455 (2012)

applies retroactively to cases on collateral review.   Miller held that it is

unconstitutional for state courts to impose an automatic life sentence

without possibility of parole upon a homicide defendant for a murder


                                     -6-
J-S31017-16


committed while the defendant was a juvenile. Miller v. Alabama, supra,

however, is inapplicable to Rivera.

      Finally, we are unable to afford Rivera relief based on his assertion

that an “illegal sentence is deem[ed] nonwaiv[a]ble.” Rivera’s Supplemental

Argument to Brief, at 1.        This Court has clarified that, “[t]hough not

technically waivable, a legality [of sentence] claim may nevertheless be lost

should it be raised … in an untimely PCRA petition for which no time-bar

exception applies, thus depriving the court of jurisdiction over the claim.”

Commonwealth v. Miller, supra, 102 A.3d at 995 (quotations and citation

omitted).

      Therefore, because Rivera has not demonstrated the applicability of

any timeliness exception, neither the PCRA court nor this Court has

jurisdiction to consider the merits of his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




                                      -7-
