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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
FELIX VAZQUEZ :
:
Appellant : No. 2926 EDA 2016
Appeal from the PCRA Order August 31, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001787-2012
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 20, 2017
Appellant, Felix Vazquez, appeals pro se from the order entered in the
Chester County Court of Common Pleas, which denied his first petition filed
under the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A. §§ 9541-9546.
On June 28, 2012, Appellant entered a negotiated guilty plea to one count of
possession with intent to deliver (“PWID”). That same day, the court
sentenced Appellant to 9-20 years’ imprisonment. Appellant did not seek
further review, so the judgment of sentence became final on July 28, 2012.
Appellant filed the current pro se PCRA petition on February 22, 2016.
The PCRA court appointed counsel, who filed an amended PCRA petition on
June 23, 2016. The PCRA court issued Rule 907 notice and dismissed the
petition on August 31, 2016. Appellant timely filed a pro se notice of appeal.
The PCRA court ordered Appellant to file a Rule 1925(b) statement, which
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*Former Justice specially assigned to the Superior Court.
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Appellant timely filed pro se on September 26, 2016. On October 4, 2016,
PCRA counsel filed a Rule 1925(c)(4) statement of intent to file a
Turner/Finley1 brief. Appellant filed in this Court, on December 5, 2016, a
pro se motion, in which Appellant requested a Grazier hearing so he could
proceed pro se on appeal. On January 1, 2017, this Court remanded this
case to the PCRA court to conduct a Grazier hearing, which the PCRA court
held on March 23, 2017. Following the hearing, the PCRA court determined
Appellant had waived counsel for purposes of this appeal.
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 in the PCRA allow
for very limited circumstances under which the late filing of a petition will be
excused. 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the
newly created constitutional right exception under Section 9545(b)(1)(iii), “a
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1
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988).
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petitioner must prove that there is a ‘new’ constitutional right and that the
right ‘has been held’ by that court to apply retroactively.” Commonwealth
v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.
625, 46 A.3d 715 (2012).
Instantly, Appellant’s judgment of sentence became final on July 28,
2012, when the time to file a direct appeal expired. See Pa.R.A.P. 903.
Appellant filed the current petition on February 22, 2016, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the
“new constitutional right” exception to the PCRA time bar by citing Alleyne
v. U.S., ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne
was decided on June 17, 2013. Appellant filed his petition well beyond 60
days after the Alleyne decision. See 42 Pa.C.S.A. § 9545(b)(2), supra.
Further, neither the U.S. Supreme Court nor the Pennsylvania Supreme
Court has held that Alleyne or its progeny apply retroactively on collateral
review. See Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014)
(holding that even if Alleyne announced new constitutional right, neither
our Supreme Court nor United States Supreme Court has held that Alleyne
applies retroactively, which is fatal to appellant’s attempt to satisfy “new
constitutional right” exception to timeliness requirements of PCRA). See
also Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)
(holding Alleyne does not apply retroactively on collateral review to
challenge sentences which became final before Alleyne was decided).
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Therefore, Appellant’s petition remains time barred, and the PCRA court
lacked jurisdiction to review it. See Turner, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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