Com. v. Hernandez, R.

Opinion

J-S14027-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

RAMON HERNANDEZ

Appellant No. 1513 MDA 2015

Appeal from the PCRA Order March 31, 2015 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000594-2001 CP-67-CR-0000608-2001 CP-67-CR-0003223-2001 CP-67-CR-0003224-2001 CP-67-CR-0003225-2001 CP-67-CR-0003229-2001

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED APRIL 25, 2016

Appellant, Ramon Hernandez, appeals1 pro se from the order entered

on March 31, 2015 denying his petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On August 20, 2001, Hernandez was sentenced to an aggregate term

of 20 to 40 years’ imprisonment after pleading guilty to various charges,

including attempted murder, robbery, burglary, aggravated assault, theft, ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 On March 8, 2016, Hernandez filed a “Motion to Supersede as a Stay/Or Remand.” We deny this motion. J-S14027-16

and conspiracy. Hernandez did not file a post-sentence motion or a direct

appeal. Thus, his judgment of sentence became final on September 20,

2001. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).

Thereafter, Hernandez filed an untimely PCRA petition, which he

subsequently withdrew at a hearing held in 2003. On January 16, 2015,

Hernandez filed a pro se PCRA petition, which is the subject of this appeal.

The PCRA court dismissed Hernandez’s petition as untimely, after providing

Rule 907 notice. Thereafter, the PCRA court received pro se correspondence

from Hernandez, indicating that he wished to appeal the court’s decision.

Initially, the PCRA court did not treat that letter as a notice of appeal;

however, the PCRA court granted Hernandez’s request to file an appeal nunc

pro tunc. This appeal followed.

“Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013)

(citation and internal quotation marks omitted).

In the instant case, we need not address the substance of Hernandez’s

appeal because his PCRA petition is untimely. “The PCRA timeliness

requirements are jurisdictional in nature and, accordingly, a court cannot

hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d

489, 509 (Pa. 2004) (citations omitted). A petitioner must file a PCRA

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petition within one year of the date that his judgment becomes final. See 42

Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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 the review.” 42 Pa.C.S.A. § 9545(b)(3). There are three

statutory exceptions to the PCRA’s timeliness provisions that allow for very

limited circumstances under which the late filing of a petition will be

excused. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner asserting a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. See 42 Pa.C.S.A. § 9545(b)(2).

Here, as noted, Hernandez’s sentence became final on September 20,

2001. Thus, his second PCRA petition—filed over thirteen years later—is

patently untimely. Hernandez has failed to prove that an exception to the

timeliness requirements of the PCRA applies.

For instance, on appeal, Hernandez argues that the timeliness

exception in subsection 9545(b)(1)(iii) applies because the United States

Supreme Court’s holding in Alleyne v. United States, 133 S. Ct. 2151

(2013)2 is an after-recognized constitutional right that should be applied

retroactively to his case. Hernandez’s argument, however, is meritless for

____________________________________________

2 In Alleyne, the United States Supreme Court held that any fact that increases a mandatory minimum sentence for a crime is an “element” of the crime that must be submitted to the jury. 133 S.Ct. at 2155.

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three reasons. First, Alleyne is inapplicable because Hernandez was not

sentenced to a mandatory minimum. Second, Alleyne does not apply

retroactively to cases in which the judgment of sentence has become final.

See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Third, even if Alleyne created a new constitutional right, Hernandez’s

petition was still untimely because he did not file it within sixty days of the

Alleyne decision. See 42 Pa.C.S.A. § 9545(b)(2).

Hernandez has filed a patently untimely PCRA petition that does not

come within any of the exceptions to the time bar. Accordingly, neither the

PCRA court nor this Court has jurisdiction to consider his request for relief.

Order affirmed. Motion denied.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/25/2016

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