J-S89021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HECTOR RIVERA
Appellant No. 853 EDA 2016
Appeal from the PCRA Order February 24, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1106201-1996
BEFORE: SHOGAN, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY MOULTON, J.: FILED APRIL 27, 2017
Hector Rivera appeals from the February 24, 2016 order of the
Philadelphia County Court of Common Pleas dismissing as untimely his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On May 27, 1997, following a bench trial, the trial court convicted
Rivera of rape, statutory rape, indecent assault, unlawful restraint,
endangering the welfare of children, corruption of minors, false
imprisonment, attempted involuntary deviate sexual intercourse, and
indecent exposure.1 On November 29, 1999, the trial court sentenced
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3121, 3122, 3126, 2902, 4304, 6301, 2903, 3123, and
3127, respectively.
J-S89021-16
Rivera to a total of 23½ to 47 years’ incarceration. On April 18, 2001, this
Court affirmed his judgment of sentence. Rivera filed a petition for
allowance of appeal, which the Pennsylvania Supreme Court denied on
October 4, 2001.
On October 3, 2002, Rivera timely filed his first PCRA petition, which
the PCRA court denied. Rivera appealed to this Court and, on November 29,
2005, we vacated the PCRA court’s order and remanded for the PCRA court
to make a determination regarding Rivera’s indigency status and appoint
counsel if necessary. On June 25, 2008, the PCRA court again dismissed
Rivera’s PCRA petition. Rivera appealed to this Court, and we affirmed on
July 14, 2009.
On March 25, 2014, Rivera filed a writ of habeas corpus claiming
ineffective assistance of counsel, which the PCRA court treated as a second
PCRA petition.2 On July 23, 2015, Rivera filed the instant PCRA petition,
which the PCRA court treated as a supplement to Rivera’s second PCRA
____________________________________________
2
Because the habeas petition asserted a claim of trial counsel
ineffectiveness, the trial court did not err in treating it as a PCRA petition.
See 42 Pa.C.S. § 9542 (“The action established in this subchapter shall be
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.”);
see also Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (“No
other statutory or common law remedy ‘for the same purpose’ is intended to
be available; instead, such remedies are explicitly ‘encompassed’ within the
PCRA.”).
-2-
J-S89021-16
petition. The PCRA court addressed all of Rivera’s claims in its August 24,
2015 notice of intent to dismiss pursuant to Pennsylvania Rule of Criminal
Procedure 907(1). Rivera timely objected, and, on February 24, 2016, the
PCRA court issued an order and opinion dismissing Rivera’s petition. Rivera
timely filed a notice of appeal. The PCRA court did not order Rivera to file a
Pennsylvania Rule of Appellate Procedure 1925(b) statement.3
On appeal, Rivera raises the following issues:
I. Did the P.C.R.A. Court err in denying the instant Post
Conviction Relief Act Petition without a hearing when
the “new rule” of law created by the United States
Supreme Court in their plurality decision in Alleyne v.
United States, 133 S.Ct. 2151 (2013) is a
“substantive rule,” that by “constitutional
requirement” must be implied (sic) retroactively in the
instant case?
II. Did the P.C.R.A. Court err in denying the Post
Conviction Relief Act Petition without a hearing when
Mr. Rivera filed the instant Post Conviction Relief Act
Petition timely by filing within sixty (60) days of
learning of the Supreme Court of Pennsylvania’s
decision in Commonwealth v. Hopkins, 117 A.3d
247 (2015)?
III. Did the P.C.R.A. Court err in denying the Post
Conviction Relief Act Petition without a hearing when
Mr. Rivera contends that through the Court’s inherent
power, the P.C.R.A. Court always retains jurisdiction
to correct his patently unconstitutional, and therefore
illegal sentence?
____________________________________________
3
The PCRA court did not file a Rule 1925(a) opinion; however, the
reasons for its order are included in its February 24, 2016 Order and
Opinion.
-3-
J-S89021-16
Rivera’s Br. at 4 (suggested answers omitted).4
Our review of an order denying PCRA relief is limited to determining
“whether the decision of the PCRA court is supported by the evidence of
record and is free of legal error.” Commonwealth v. Melendez–Negron,
123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s
factual findings “unless there is no support for [those] findings in the
certified record.” Id.
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition,
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is 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 [such] review.” 42
Pa.C.S. § 9545(b)(3).
The trial court sentenced Rivera on November 29, 1999. He appealed
to this Court, and we affirmed his judgment of sentence on April 18, 2001.
Rivera then sought allowance of appeal, which the Pennsylvania Supreme
____________________________________________
4
In his March 25, 2014 writ of habeas corpus, Rivera raised an
ineffectiveness of counsel claim; however, Rivera does not raise this issue on
appeal.
-4-
J-S89021-16
Court denied on October 4, 2001. Rivera did not file a writ of certiorari with
the United States Supreme Court and, therefore, his judgment of sentence
became final on January 2, 2002.5 He had one year from that date, that is,
until January 2, 2003, to file a timely PCRA petition. Therefore, his current
petition, filed on July 23, 2015, is facially untimely.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
(i) the failure to raise the claim previously 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)(i)-(iii); see Brown, 111 A.3d at 175. In addition,
when invoking an exception to the PCRA time bar, the petition must “be filed
____________________________________________
5
Rivera had 90 days from the date the Pennsylvania Supreme Court
denied his petition for allowance of appeal to file a petition for a writ of
certiorari with the United States Supreme Court. See U.S. S. Ct. R. 13.
-5-
J-S89021-16
within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Rivera claims that Alleyne created a new constitutional right that
should be applied retroactively. However, our Supreme Court held in
Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that
Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences. Thus, Alleyne does not apply retroactively to Rivera’s
case.
Rivera also claims he meets the “new facts” exception because he filed
his PCRA petition within 60 days of learning of the Commonwealth v.
Hopkins decision. In Hopkins, the Pennsylvania Supreme Court found that
pursuant to Alleyne, the mandatory minimum sentencing scheme set forth
in 18 Pa.C.S. § 6317 (“Drug-free school zones”) was unconstitutional in its
entirety. 117 A.3d at 262. Unlike Rivera, who seeks relief through a PCRA
petition, the appellant in Hopkins had filed a direct appeal, as his sentence
was not final at the time the United States Supreme Court issued its decision
in Alleyne. Further, “a judicial opinion does not qualify as a previously
unknown ‘fact’ capable of triggering the timeliness exception set forth in
section 9545(b)(1)(ii) of the PCRA.” See Commonwealth v. Cintora, 69
A.3d 759, 763 (Pa.Super. 2013).
Finally, Rivera claims that we have the inherent power to correct illegal
sentences. “Although legality of sentence [claims are] always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits
-6-
J-S89021-16
or one of the exceptions thereto.” Commonwealth v. Infante, 63 A.3d
358, 365 (Pa.Super. 2013) (quoting Commonwealth v. Fowler, 930 A.2d
586, 592 (Pa.Super. 2007)). Therefore, because Rivera’s PCRA petition is
untimely, this Court lacks jurisdiction to hear any claim, including a
challenge to the legality of his sentence.
In sum, Rivera’s PCRA petition is time-barred. We conclude the PCRA
court’s dismissal of the PCRA petition as untimely is supported by the record
and free of legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2017
-7-