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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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