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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EMILIO NIEVES,
Appellant No. 358 MDA 2015
Appeal from the PCRA Order entered February 6, 2015,
in the Court of Common Pleas of Lebanon County,
Criminal Division, at No(s): CP-38-CR-0000563-2002 &
CP-38-CR-0001621-2001
BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015
Emilio Nieves (“Appellant”) appeals from the order denying his petition
for post-conviction relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent procedural history as
follows:
In Action No. 1621-2001, [Appellant] was charged with
[multiple drug and drug-related charges]. In Action No.
[563-2002], he was charged with [two counts of
possession with intent to deliver]. On January 6, 2003,
[Appellant] entered a guilty plea in No. 563 and on
January 7, 2003, he entered a plea of nolo contendere to
the charges at No. 1621. On January 10, 2003, this Court
imposed an aggregate sentence of fourteen (14) to thirty
(30) years for these actions. [Appellant] filed a direct
appeal to the Superior Court of Pennsylvania challenging
*Retired Senior Judge assigned to the Superior Court.
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the discretionary aspects of his sentence. The Superior
Court affirmed by Order of June 3, 2004. [Appellant did
not file a petition for allowance of appeal to our Supreme
Court.]
On April 13, 2005, [Appellant] filed [PCRA petitions] in
both actions. We dismissed those petitions without a
hearing by Order of February 7, 2008. On March 5, 2008,
[Appellant] filed a [pro se] Notice of Appeal of that Order.
By Order of May 26, 2009, the Superior Court vacated the
Order denying PCRA relief and remanded for us to
reinstate [Appellant’s] appellate rights in No. 1621 and to
conduct an evidentiary hearing in No. 563. By Order of
May 27, 2009, we appointed counsel to represent
[Appellant], reinstated his appellate rights in No. 1621 and
scheduled an evidentiary hearing for No. 563. [Appellant]
filed a Notice of Appeal in No. 1621 on June 26, 2009 and
the Superior Court issued an Order affirming the judgment
of sentence in No. 1621 on February 12, 2010. We
conducted an evidentiary hearing in No. 563 on January
26, 2010 and on July 12, 2010, we dismissed [Appellant’s]
[PCRA] Petition in that action.
On February 14, 2012, [Appellant] filed a Motion for
Modification of Sentence Nunc Pro Tunc in both actions
which we denied on February 17, 2012. On June 13,
2014, he filed a Motion for Sentence
Correction/Modification requesting collateral relief in both
actions. We appointed counsel to represent [Appellant]
and issued a Rule upon the Commonwealth to show cause
why the requested relief should not be granted. The
Commonwealth responded on July 21, 2014. On February
3, 2015, [Appellant] filed a counseled amended PCRA
Petition [supplementing Appellant’s February 14, 2012
motion], which we denied by Order of February 6, 2015.
The Commonwealth responded to that Petition on February
12, 2015.
PCRA Court Opinion, 4/20/15, at 1-3 (footnotes omitted). This timely appeal
followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.
1925.
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Appellant raises the following issue:
1. WHETHER [THE] TRIAL COURT ERRED WHEN IT
IMPOSED AN ILLEGAL SENTENCE UPON [APPELLANT] IN
LIGHT OF THE HOLDING IN ALLEYNE V. UNITED
STATES, 133 S.Ct. 2151, 186 L.Ed.2d 314, 81 USLW 4444
(2013)?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011
(Pa. Super. 2001).
Before addressing the issue raised by Appellant in his pro se brief, we
must first determine whether the PCRA court properly determined that
Appellant’s latest PCRA petition was untimely.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor
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the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,
we simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
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At No. 563, Appellant’s judgment of sentence became final on or about
July 5, 2004, after the expiration of time for filing an appeal to our Supreme
Court. See 42 Pa.C.S.A. § 9545(b)(3). At No. 1621, Appellant’s judgment
of sentence became final on March 13, 2012, after the expiration of the time
for filing an appeal to our Supreme Court. Id. Thus, in order for his PCRA
petition to be timely at No. 563, Appellant would have had to file it by July 5,
2005. In order to be timely at No. 1621, Appellant would have had to file
his latest PCRA petition by March 13, 2013. Because Appellant did not file
his present petition involving both matters until June 13, 2014, it is untimely
unless he has satisfied his burden of pleading and proving that one of the
enumerated time-bar exceptions applies. See Commonwealth v. Beasley,
741 A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to properly raise and prove the applicability of any
of the exceptions to the PCRA’s time restrictions. Appellant argues:
[Appellant] avers that Alleyne established a new
constitutional right and, thereby, relieves him of the time
limitations set forth by the Act pursuant to § 945(b)(1)(iii).
See also, Commonwealth v. Newman, [99 A.3d 86 (Pa.
Super. 2014) (en banc)].
Furthermore, [Appellant] has been diligently seeking
modification of his sentence throughout his time of
incarceration. However, his sentence has always been
affirmed. Since Alleyne has recognized a new
constitutional right, [Appellant’s] rights should now be
reinstated in the interest of justice.
Appellant’s Brief at 13.
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Initially, our review of Appellant’s pro se June 13, 2014 motion, as well
as counsel’s amended PCRA petition, supports the Commonwealth’s
assertion that Appellant is improperly raising the PCRA’s time bar exception
for the first time on appeal. See generally, Pa.R.A.P. 302(a);
Commonwealth Brief at 9.
Nevertheless, the PCRA court correctly explained:
[Appellant] now claims that the aggregate sentence
imposed in these actions on October 10, 2003 was illegal
and that he is entitled to collateral relief on the basis of the
United [States] Supreme Court’s subsequent holding in
Alleyne v. United States, 133 S.Ct. 2151 (2013). In
that case, the Supreme Court held that any fact that
increases a mandatory minimum sentence is an element
[of the crime] that must be submitted to a jury.
***
The holding of Alleyne is applied retroactively only to
cases which were pending on direct appeal at the time it
was rendered. Commonwealth v. Newman, 99 A.2d 86
(Pa.Super. 2014).
PCRA Court Opinion, 4/20/15, at 3-5 (footnote omitted).
The PCRA court then quoted extensively from this Court’s decision in
Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), in which we
noted, “neither our Supreme Court, nor the United States Supreme Court
have held that Alleyne applies retroactively to cases in which the judgment
of sentence has become final.” Miller, 102 A.3d at 995. The PCRA court
thereafter concluded:
The holding of Alleyne is inapplicable to the sentence
imposed in these matters. Both judgments of sentence
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had become final here, as neither of these actions was
pending on direct appeal at the time that [the Alleyne]
decision was entered. Thus, [Appellant’s] claim for
collateral relief was untimely and we dismissed
[Appellant’s] PCRA Petition for that reason.
PCRA Court Opinion, 4/20/15, at 8.
Our review of the record supports the PCRA court’s conclusion that it
lacked jurisdiction to consider Appellant’s PCRA petition. Accordingly, we
affirm the PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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