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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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