J-S05024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
HECTOR J. LOPEZ
Appellant No. 1077 MDA 2016
Appeal from the Order Dated May 26, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003429-2011
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*
JUDGMENT ORDER BY PANELLA, J. FILED MARCH 02, 2017
Appellant, Hector Lopez, appeals pro se from the order dismissing his
petition for writ of habeas corpus as an untimely petition pursuant to the
Post Conviction Relief Act (“PCRA”). Lopez argues that there can be no
timeliness requirement for a challenge to an illegal sentence. After careful
review, we agree with the PCRA court that it lacked jurisdiction to entertain
Lopez’s petition, and therefore affirm.
On July 10, 2012, Lopez pled guilty to two counts each of possession
of heroin with the intent to deliver and conspiracy. On August 28, 2012, the
trial court imposed mandatory minimum sentences for the possession with
intent to deliver charges pursuant to 18 Pa.C.S.A. § 7508.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S05024-17
Lopez did not file a direct appeal, but on September 2, 2014, he filed a
PCRA petition. In it, he argued that his mandatory minimum sentences were
illegal under Alleyne v. United States, 133 S.Ct. 2151 (2013). After the
PCRA court denied relief, this Court permitted Lopez to withdraw his appeal
pursuant to his pro se motion, wherein he agreed with appointed counsel
that his appeal had no meritorious issues. See Commonwealth v. Lopez,
No. 699 MDA 2015, at 3-4 (Pa. Super. filed 5/4/16) (unpublished
memorandum).
Lopez filed the instant petition for writ of habeas corpus on May 18,
2016, arguing that his sentence was illegal pursuant to Alleyne. The PCRA
court treated the petition as a PCRA petition and dismissed it as untimely.
Lopez then filed this timely appeal.
On appeal, Lopez contends that there can be no time limit imposed
upon a challenge to the legality of a sentence. Clearly, Lopez understood
that the PCRA had such a time limit, which is why he withdrew his PCRA
petition and filed the current petition as a petition for writ of habeas corpus.
However, it is well settled that the PCRA subsumes the remedy of
habeas corpus with respect to remedies offered under the PCRA. See
Commonwealth v. West, 938 A.2d 1034, 1043-1045 (Pa. 2007). “PCRA
review is limited to defendants who claim that they were wrongfully
convicted and/or are serving an illegal sentence.” Commonwealth v.
Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010) (citation omitted). Thus,
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Lopez’s challenge to the legality of his sentence is cognizable under the
PCRA, and therefore cannot be the basis for relief in a petition for writ of
habeas corpus.
Since the trial court properly treated Lopez’s petition as a PCRA
petition, the jurisdictional requirements of the PCRA applied. The timeliness
of a post-conviction petition is jurisdictional. See Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Lopez’s judgment of
sentence became final on September 27, 2012, when the time for filing a
direct appeal to this court ran out. See 42 Pa.C.S.A. § 9545(b)(3). As a
result, any PCRA petition filed by Lopez after September 27, 2013 is time-
barred, unless he pleads and proves an exception to the time-bar. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Lopez makes no attempt to plead an exception, as he contends that
the PCRA does not apply to this petition. Rather, he contends that there can
be no time-bar to a challenge to the legality of the sentence. This argument
has been repeatedly rejected by the courts of this Commonwealth. See,
e.g., Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Thus, the trial court properly dismissed Lopez’s petition as an untimely PCRA
petition.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2017
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