J-S59004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICKEY SANTOS COLON,
Appellant No. 1128 EDA 2017
Appeal from the PCRA Order Entered March 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001921-2010
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 24, 2017
Appellant, Mickey Santos Colon, appeals pro se from the post-
conviction court’s March 15, 2017 order denying, as untimely, his second
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. After careful review, we are compelled to affirm.
We need not provide a detailed recitation of the facts of Appellant’s
underlying convictions for purposes of this appeal. We only briefly note that,
Herman McMullen, a confidential informant with a known drug history, facilitated the controlled purchase of cocaine from [Appellant] on two occasions. A jury convicted [Appellant] of two counts of possession with intent to deliver a controlled substance and two counts of criminal use of a communication facility. The trial court sentenced [Appellant] to an aggregate term of 12 to 24 years’ incarceration. On appeal, this Court affirmed [Appellant’s] judgment of sentence, and the ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S59004-17
Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Colon, [63 A.3d 817 (Pa. Super. 2012)], appeal denied, 67 A.3d 793 (Pa. 2013). [Appellant] filed a timely PCRA petition. The PCRA court conducted an evidentiary hearing and later dismissed Colon’s petition.
Commonwealth v. Colon, No. 543 EDA 2015, unpublished memorandum
at 1-2 (Pa. Super. filed Sept. 11, 2015) (footnotes omitted). Appellant filed
a timely appeal from the order denying his first PCRA petition, and this Court
affirmed. Id. Our Supreme Court thereafter denied Appellant’s petition for
allowance of appeal. Commonwealth v. Colon, 158 A.3d 66 (Pa. 2016).
On October 25, 2016, Appellant filed his second pro se PCRA petition,
which underlies the present appeal. Therein, he argued that a mandatory
minimum sentence imposed in his case pursuant to 18 Pa.C.S. §
7508(a)(3)(ii) (requiring a mandatory five-year minimum sentence when the
amount of cocaine involved is at least 10 grams but less than 100 grams
and, at the time of sentencing, the defendant has been convicted of another
drug-trafficking offense), is illegal under 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 also asserted that the attorney who
represented him in the litigation of his first, timely-filed PCRA petition was
ineffective for not raising a challenge to the legality of his sentence under
Alleyne.
On February 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. Appellant filed a pro se
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response, but on March 13, 2017, the PCRA court issued an order dismissing
his petition. Appellant filed a timely, pro se notice of appeal, and he also
timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
presents one issue for our review: “Whether PCRA counsel was ineffective in
failing to raise the issue that Appellant’s sentence constitutes an illegal
mandatory [sentence] under Alleyne…[?]” Appellant’s Brief at 3.
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
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
-3- J-S59004-17
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).
Here, Appellant’s judgment of sentence became final on August 27,
2013, at the conclusion of the ninety-day time period for seeking review with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating
that a judgment of sentence becomes final at the conclusion of direct review
or the expiration of the time for seeking the review); Commonwealth v.
Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the
PCRA, petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, his current petition in October of 2016 is facially
untimely and, for this Court to have jurisdiction to review the merits thereof,
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Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant contends that he has met “the timeliness
exceptions outlined in § 9545” because his first PCRA counsel acted
ineffectively by not arguing that Alleyne renders Appellant’s mandatory
minimum sentence illegal. Appellant’s Brief at 6. Appellant stresses that the
rule in Alleyne “was applicable to Appellant[,] whose direct appeal was
pending until August 27, 2013[,]” which was after Alleyne was decided on
June 17, 2013. Id. Appellant maintains that his PCRA counsel acted
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J-S59004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICKEY SANTOS COLON,
Appellant No. 1128 EDA 2017
Appeal from the PCRA Order Entered March 15, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001921-2010
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 24, 2017
Appellant, Mickey Santos Colon, appeals pro se from the post-
conviction court’s March 15, 2017 order denying, as untimely, his second
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. After careful review, we are compelled to affirm.
We need not provide a detailed recitation of the facts of Appellant’s
underlying convictions for purposes of this appeal. We only briefly note that,
Herman McMullen, a confidential informant with a known drug history, facilitated the controlled purchase of cocaine from [Appellant] on two occasions. A jury convicted [Appellant] of two counts of possession with intent to deliver a controlled substance and two counts of criminal use of a communication facility. The trial court sentenced [Appellant] to an aggregate term of 12 to 24 years’ incarceration. On appeal, this Court affirmed [Appellant’s] judgment of sentence, and the ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S59004-17
Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Colon, [63 A.3d 817 (Pa. Super. 2012)], appeal denied, 67 A.3d 793 (Pa. 2013). [Appellant] filed a timely PCRA petition. The PCRA court conducted an evidentiary hearing and later dismissed Colon’s petition.
Commonwealth v. Colon, No. 543 EDA 2015, unpublished memorandum
at 1-2 (Pa. Super. filed Sept. 11, 2015) (footnotes omitted). Appellant filed
a timely appeal from the order denying his first PCRA petition, and this Court
affirmed. Id. Our Supreme Court thereafter denied Appellant’s petition for
allowance of appeal. Commonwealth v. Colon, 158 A.3d 66 (Pa. 2016).
On October 25, 2016, Appellant filed his second pro se PCRA petition,
which underlies the present appeal. Therein, he argued that a mandatory
minimum sentence imposed in his case pursuant to 18 Pa.C.S. §
7508(a)(3)(ii) (requiring a mandatory five-year minimum sentence when the
amount of cocaine involved is at least 10 grams but less than 100 grams
and, at the time of sentencing, the defendant has been convicted of another
drug-trafficking offense), is illegal under 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 also asserted that the attorney who
represented him in the litigation of his first, timely-filed PCRA petition was
ineffective for not raising a challenge to the legality of his sentence under
Alleyne.
On February 8, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition. Appellant filed a pro se
-2- J-S59004-17
response, but on March 13, 2017, the PCRA court issued an order dismissing
his petition. Appellant filed a timely, pro se notice of appeal, and he also
timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
presents one issue for our review: “Whether PCRA counsel was ineffective in
failing to raise the issue that Appellant’s sentence constitutes an illegal
mandatory [sentence] under Alleyne…[?]” Appellant’s Brief at 3.
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
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
-3- J-S59004-17
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).
Here, Appellant’s judgment of sentence became final on August 27,
2013, at the conclusion of the ninety-day time period for seeking review with
the United States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (stating
that a judgment of sentence becomes final at the conclusion of direct review
or the expiration of the time for seeking the review); Commonwealth v.
Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the
PCRA, petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court). Thus, his current petition in October of 2016 is facially
untimely and, for this Court to have jurisdiction to review the merits thereof,
-4- J-S59004-17
Appellant must prove that he meets one of the exceptions to the timeliness
requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant contends that he has met “the timeliness
exceptions outlined in § 9545” because his first PCRA counsel acted
ineffectively by not arguing that Alleyne renders Appellant’s mandatory
minimum sentence illegal. Appellant’s Brief at 6. Appellant stresses that the
rule in Alleyne “was applicable to Appellant[,] whose direct appeal was
pending until August 27, 2013[,]” which was after Alleyne was decided on
June 17, 2013. Id. Appellant maintains that his PCRA counsel acted
ineffectively by not asserting that Alleyne applies to Appellant’s case
because his judgment of sentence was not final when Alleyne was decided.
We are constrained to conclude that Appellant’s argument cannot
overcome the one-year timeliness requirement of the PCRA. We recognize
that this Court has granted post-conviction relief to a petitioner who, like
Appellant, claimed that his sentence was illegal under Alleyne, and whose
judgment of sentence was not final before Alleyne was decided. See
Commonwealth v. Ruiz, 131 A.3d 54, 59 (Pa. Super. 2015). In Ruiz, the
petitioner filed a timely PCRA petition, and our Court accepted his argument
that Alleyne applied to his case because his judgment of sentence was not
yet final when Alleyne was decided. Id. at 59-60.
However, in the present case, Appellant’s initial PCRA counsel did not
present such an argument in Appellant’s timely-filed PCRA petition.
Unfortunately for Appellant, he cannot challenge PCRA counsel’s arguable
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ineffectiveness in this regard in his untimely-filed PCRA petition, as “[i]t is
well settled that allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations
omitted).
Additionally, Appellant cannot obtain relief based on his claim that his
sentence is illegal under Alleyne. While claims challenging the legality of
sentence are subject to review within the PCRA, the petitioner must first
satisfy the PCRA’s time limits. Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999). Appellant cannot rely on Alleyne to meet the timeliness
exception of section 9545(b)(1)(iii), as Alleyne does not apply retroactively
to collateral review. See Commonwealth v. Washington, 142 A.3d 810,
820 (Pa. 2016).
Therefore, we are constrained to conclude that Appellant has failed to
meet any timeliness exception and, thus, the PCRA court did not err in
dismissing his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/24/2017
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