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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 BENJI OCASIO,
Appellant No. 1527 WDA 2015
Appeal from the PCRA Order Entered September 3, 2015
In the Court of Common Pleas of Blair County
Criminal Division at No(s):
CP-07-CR-0000940-1999
CP-07-CR-0000941-1999
CP-07-CR-0000942-1999
CP-07-CR-0000945-1999
CP-07-CR-0000946-1999
CP-07-CR-0000947-1999
CP-07-CR-0001083-1999
CP-07-CR-0001644-1999
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 30, 2017
Appellant, Felix Benji Ocasio, appeals from the post-conviction court’s
September 3, 2015 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful
review, we affirm.
We need not set forth a detailed summary of the facts of Appellant’s
underlying convictions for purposes of this appeal. We only note that
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*
Retired Senior Judge assigned to the Superior Court.
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Appellant was involved in a heroin trafficking ring operating in Blair County,
Pennsylvania, from January through May of 1999. For this conduct,
Appellant was convicted, in eight separate cases, of various drug-related
offenses, including nine counts of possession with intent to deliver a
controlled substance. Appellant was originally sentenced on March 8, 2001,
but, on direct appeal, this Court vacated that sentence and remanded for
resentencing. Commonwealth v. Ocasio, 792 A.2d 616 (Pa. Super. 2001)
(unpublished memorandum).
On November 27, 2001, Appellant was resentenced to an aggregate
term of 39 to 78 years’ incarceration. He did not file a direct appeal and,
therefore, his judgment of sentence became final on December 27, 2001.
See 42 Pa.C.S. § 9545(b)(3) (directing that judgment of sentence becomes
final at the conclusion of direct review or the expiration of the time for
seeking the review); Pa.R.A.P. 903(a) (stating that a notice of appeal to
Superior Court must be filed within 30 days after the entry of the order from
which the appeal is taken). In April of 2002, Appellant filed a pro se PCRA
petition, and counsel was appointed. Ultimately, that petition was denied,
and this Court affirmed on appeal. See Commonwealth v. Ocasio, 30
A.3d 540 (Pa. Super. 2011) (unpublished memorandum).
On July 30, 2015, Appellant filed a counseled PCRA petition, which
underlies the present appeal. On September 3, 2015, the court entered an
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order denying that petition without a hearing.1 Appellant filed a timely,
counseled notice of appeal on October 2, 2015.2 Herein, Appellant presents
one issue for our review:
I. Whether the [PCRA] court erred in refusing to resentence
Appellant following the finding that the Pennsylvania
mandatory minimum sentencing provisions for drug
offenses is unconstitutional and whether that finding
should be applied to [] Appellant retroactively[?]
Appellant’s Brief at 1.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
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1
We recognize that the PCRA court did not issue a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. However, Appellant does not
object to that error on appeal and, therefore, any challenge thereto is
waived. See Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa. Super.
2000). Moreover, “our Supreme Court has held that where the PCRA
petition is untimely, the failure to provide [a Rule 907] notice is not
reversible error.” Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.
Super. 2007) (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7
(Pa. 2000)). As discussed, infra, we conclude that Appellant’s petition is
untimely, and he fails to meet any timeliness exception. Accordingly, the
PCRA court’s failure to provide a Rule 907 notice would not be reversible
error, even had Appellant not waived this claim for our review.
2
Our disposition of Appellant’s appeal was delayed due to procedural
complexities, including a remand to the PCRA court to ascertain the status of
counsel’s representation of Appellant herein.
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address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded to address the merits of
the petition). Under the PCRA, any petition for post-conviction relief,
including a second or subsequent one, must be filed within one year of the
date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Here, Appellant’s judgment of sentence became final in December of
2001, and thus, his present petition filed in July of 2015 is facially untimely.
For this Court to have jurisdiction to review the merits thereof, Appellant
must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Appellant argues that he meets the ‘new retroactive right’ exception of
section 9545(b)(1)(iii) based on Alleyne v. United States, 133 S.Ct. 2151,
2163 (2013) (holding that “facts that increase mandatory minimum
sentences must be submitted to the jury” and found beyond a reasonable
doubt). Appellant contends that several, unspecified mandatory minimum
sentences were imposed in his case, which are now illegal under Alleyne.
He also avers that Alleyne “applies retroactively to him because it is a rule
of substance, affecting his Sixth Amendment rights and a watershed decision
because it affected the entire sentencing scheme….” Appellant’s Brief at 7.
It is well-settled that petitioners cannot rely on Alleyne to satisfy the
timeliness exception of section 9545(b)(1)(iii) because “neither our Supreme
Court, nor the United States Supreme Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of sentence had become
final.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Indeed, our Supreme Court has explicitly held that Alleyne does not apply
retroactively to cases pending on collateral review, because it is neither a
‘substantive rule,’ nor “a rule … of a groundbreaking, ‘watershed’ character.”
See Commonwealth v. Washington, 142 A.3d 810, 818–20 (Pa. 2016).
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While Appellant argues that we should apply Alleyne retroactively in his
case, this Court is not only bound by the holding of Washington, but we
also do not have jurisdiction to assess Appellant’s retroactivity arguments
because his petition is untimely. Thus, the PCRA court did not err in
dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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Com. v. Ocasio, F.
Combined Opinion