J-S24038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM LOPEZ MORALES
Appellant No. 1628 MDA 2015
Appeal from the PCRA Order August 18, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001015-2006;
CP-36-CR-0005077-2006; CP-36-CR-0005078-2006
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 09, 2016
Appellant, William Lopez Morales, appeals pro se from the order
entered in the Lancaster County Court of Common Pleas, which dismissed
his second petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. On August 3, 2007, Appellant pled guilty to
multiple counts of robbery and conspiracy, and one count each of burglary,
aggravated assault, and unlawful restraint. The court sentenced Appellant
on October 23, 2007, to an aggregate term of 20-40 years’ imprisonment.
Appellant’s sentence included mandatory minimums per 42 Pa.C.S.A. §
9714(a)(1) (providing for mandatory minimum 10-year sentence for
defendant convicted of crime of violence, if at time of commission of current
offense, defendant had previously been convicted of crime of violence).
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Appellant did not pursue direct review. On December 13, 2007, Appellant
filed a pro se “motion for appeal,” which the court treated as a first PCRA
petition. The court appointed counsel, who filed an amended petition on
March 20, 2008, requesting reinstatement of Appellant’s post-sentence and
direct appeal rights nunc pro tunc. Following a hearing, the court denied
relief on January 6, 2009. This Court affirmed the denial of PCRA relief on
August 26, 2009, and our Supreme Court denied allowance of appeal on
March 19, 2010. See Commonwealth v. Morales, 984 A.2d 1019
(Pa.Super. 2009), appeal denied, 605 Pa. 711, 991 A.2d 311 (2010). On
July 22, 2015, Appellant filed the current pro se PCRA petition. The court
issued appropriate notice per Pa.R.Crim.P. 907 on July 28, 2015. Appellant
responded on August 13, 2015. On August 18, 2015, the court denied PCRA
relief. Appellant timely filed a pro se notice of appeal on September 17,
2015. On September 22, 2015, the court ordered Appellant to file a concise
statement per Pa.R.A.P. 1925(b); Appellant complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions of the PCRA allow
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for very limited circumstances under which the late filing of a petition will be
excused; a petitioner asserting a timeliness exception must file a petition
within 60 days of the date the claim could have been presented. See 42
Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant’s judgment of sentence
became final on November 22, 2007, upon expiration of the time to file a
notice of appeal with the Superior Court. See Pa.R.A.P. 903(a) (stating
notice of appeal shall be filed within 30 days after entry of order from which
appeal is taken). Appellant filed the current serial petition on July 22, 2015,
which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now
attempts to invoke the “new constitutional right” exception to the statutory
time bar per Section 9545(b)(1)(iii), relying on Alleyne v. United States,
___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding any fact
increasing mandatory minimum sentence for crime is considered element of
crime to be submitted to fact-finder and found beyond reasonable doubt).
Appellant insists Alleyne and its progeny declared unconstitutional the
mandatory minimum sentencing statute under which Appellant was
sentenced. Nevertheless, even if Alleyne created a new constitutional right,
held to apply retroactively, and even if Appellant complied with the 60-day
rule, the law on which he relies affords him no relief, because Alleyne does
not affect mandatory minimum sentences based on a prior conviction. See
id. at ___ n.1, 133 S.Ct. at 2160 n.1, 186 L.Ed.2d at ___ n.1. See also
Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (explaining even
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if appellant’s PCRA petition was timely, Alleyne would provide no relief
where increase in appellant’s minimum sentence was based on prior
conviction). Thus, we affirm the court’s denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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