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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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Rivera to a total of 231⁄2 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.”).
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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.
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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.
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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.
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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 
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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