J-S06021-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

VICTOR MALDONADO-RIVERA

Appellant No. 960 MDA 2015

Appeal from the PCRA Order May 14, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0000088-2006

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 12, 2016

Appellant, Victor Maldonado-Rivera, appeals pro se from the May 14, 

2015 order dismissing his second Post Conviction Relief Act1(PCRA) petition 

as untimely. After careful review, we affirm.

We summarize the procedural history of this case as follows. On May 

25, 2006, Appellant entered an open plea of guilty to two counts of 

involuntary deviate sexual intercourse, one count of aggravated indecent 

assault, and one count of indecent assault.2 On October 4, 2006, Appellant 

was sentenced to an aggregate term of incarceration of 141⁄2 to 29 years, 

followed by five years of probation. Appellant filed a timely direct appeal, 

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A §§ 3123(a)(6), 3123(b), 3125(a)(7), and 3126(a)(7), 

respectively.
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wherein he argued the ineffectiveness of his plea counsel for failing to insure 

the full participation of a certified interpreter, failing to challenge Appellant’s 

competency to enter a plea, and failing to present a mitigating witness at 

sentencing.3 Appellant also challenged the voluntariness of his guilty plea. 

This Court affirmed the judgment of sentence on March 11, 2009, and our 

Supreme Court denied Appellant’s petition for allowance of appeal on August 

26, 2009. Commonwealth v. Maldonaldo-Rivera, 972 A.2d 557 (Pa. 

Super. 2009) (unpublished memorandum), appeal denied, 983 A.2d 727 

(Pa. 2009).

On December 11, 2011, Appellant filed a pro se “Writ of Habeas 

Corpus Ad Subjiciendum” seeking habeas corpus relief based on the 

purported denial of counsel during his preliminary arraignment. The trial 

court denied relief and Appellant appealed. On June 12, 2012, this Court 

noted Appellant’s petition should have been treated as a PCRA petition, 

vacated the trial court’s dismissal order, and remanded for appointment of 

counsel and further proceedings. Commonwealth v. Maldonaldo-Rivera, 

53 A.3d 929 (Pa. Super. 2012) (unpublished memorandum). The PCRA 

court appointed counsel, who filed a motion to withdraw together with a 

____________________________________________

3 Appellant’s ineffective assistance of counsel issues were reviewable on 

direct appeal at the time, pursuant to Commonwealth v. Bomar, 826 A.2d 

831 (Pa. 2003), since limited by the decision in Commonwealth v. 

Holmes, 79 A.3d 562 (Pa. 2013).
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Turner/Finley4letter. Subsequently, the PCRA court dismissed Appellant’s 

petition as untimely and not subject to any of the limited exceptions to the 

PCRA’s timeliness requirements and granted counsel’s motion to withdraw. 

Appellant appealed pro se, and on August 19, 2014, this Court affirmed. 

Commonwealth v. Maldonaldo-Rivera, 106 A.3d 166 (Pa. Super. 2014) 

(unpublished memorandum).

On April 13, 2015, Appellant filed the instant pro se PCRA petition. On 

April 20, 2015, the PCRA court, in accordance with Pennsylvania Rule of 

Criminal Procedure 907, filed its notice of intent to dismiss Appellant’s PCRA 

petition as untimely. Appellant filed a pro se response on May 1, 2015. On 

May 14, 2015, the PCRA court dismissed Appellant’s petition. Appellant filed 

a timely notice of appeal on June 1, 2015.5 

On appeal, Appellant raises the following issues.

1. The [t]rial [c]ourt erred in overlooking the 

PCRA Exception under [4]2 Pa.C.S.A. §9545(b)(1)(i), 

(ii) and (iii), where a valid exception applied to 

[Appellant], where the [PCRA] court acknowledged 

[Appellant’s] inability to comprehend and understand 

even the basic English language, more the less 

Criminal Law.

2. The [t]rial [c]ourt failed to apply the 

exceptions at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii) and 

(iii), namely section (i) : The failure to raise the 

____________________________________________

4 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

5 Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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claim previously the result of interference by 

government [sic] 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, where the Department of 

Corrections hindered [Appellant’s] ability to access 

the courts and to inform [Appellant] of court rulings 

affecting [Appellant’s] sentence.

3. The [t]rial [c]ourt failed to apply the 

exceptions at 42 Pa.C.S.A. § 9545 (b)(1)(i), (ii) and 

(iii), namely section (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, as [Appellant] is incarcerated and 

without the access of criminal court decisions which 

have affected this [Appellant’s] illegal and 

unconstitutionally imposed mandatory enhanced 

consecutive sentence pursuant to § 9718.

4. The [PCRA] Court abused its discretion to 

retain jurisdiction of a federal court ruling affecting 

the legality of [Appellant’s] illegal and 

unconstitutitionally [sic] imposed sentence in 

violation of [Appellant’s] contractual plea agreement, 

where [Appellant’s] plea could not have been 

knowingly, intelligently and voluntarily entered, and 

should have been corrected.

5. The [PCRA] Court abused its discretion by 

denying PCRA Counsel and in not affording 

[Appellant] the exception available to a state court 

to grant retroactive effect to a United States 

Supreme Court constitutional ruling, pursuant to 

Danfor[th] v. Minnesota, 522 U.S. 264 (2008), 

considering the excessive Mandatory Sentence 

imposed illegally.

6. The Superior Court of Pennsylvania has the 

right to review and to reverse/remand an issue of 

the legality of a sentence sua sponte as the legality 

of a sentence can never be waived.

Appellant’s Brief at 4-5.
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We note the following principles guiding our review. “Our standard of 

review of [an] order granting or denying relief under the PCRA requires us to 

determine whether the decision of the PCRA court is supported by the 

evidence of record and is free of legal error. The PCRA court’s findings will 

not be disturbed unless there is no support for the findings in the certified 

record.” Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa. 

Super. 2015) (citation omitted). The timeliness of Appellant’s petition is our 

threshold issue “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. Cristina, 114 A.3d 419, 421 (Pa. Super. 

2015) (citations omitted). “Under the PCRA, any petition for post-conviction 

relief... must be filed within one year of the date the judgment of sentence 

becomes final, unless one of the exceptions set forth in 42 Pa.C.S. 

§ 9545(b)(1)(i)-(iii) applies.”6 Id. “The period for filing a PCRA petition is 

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6 The statute sets forth those exceptions as follows.

§ 9545. Jurisdiction and proceedings

...

(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: 

(Footnote Continued Next Page)
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not subject to the doctrine of equitable tolling; instead, the time for filing a 

PCRA petition can be extended only if the PCRA permits it to be extended.” 

Commonwealth v. Miller, 102 A.3d 988, 992-993 (Pa. Super. 2014) 

(internal quotation marks and citation omitted).

Appellant’s judgment of sentence became final on November 24, 2009, 

ninety days after our Supreme Court denied his petition for allowance of 

appeal. See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, Appellant had until 

November 24, 2010, to file a timely PCRA petition unless he could plead and 

prove the application of one of the listed exceptions. See id. § 9545(b)(1).

(Footnote Continued) _______________________

(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.A. § 9545(b)(1).
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Instantly, although Appellant attempts to invoke the applicability of all 

three of the statutory exceptions, his fundamental underlying claim is that 

he should be afforded relief based on retroactive application of the United 

States Supreme Court’s June 17, 2013 decision in Alleyne v. United 

States, 133 S. Ct. 2151 (2013). Appellant’s Brief at 16.7

This Court has recently held that while “Alleyne applies retroactively

on direct appeal, we have declined to construe that decision as applying 

retroactively to cases during PCRA review.” Commonwealth v. Riggle, 

119 A.3d 1058, 1064-1065 (Pa. Super. 2015). Our Supreme Court has 

clearly held “that the language ‘has been held’ in 42 Pa.C.S. 

§ 9545(b)(1)(iii) means that a retroactivity determination must exist at the 

time that the petition is filed.” Commonwealth v. Abdul-Salaam, 812 

A.2d 497, 502 (Pa. 2002). No such decision holding Alleyne to apply 

retroactively for post-conviction collateral relief has been made. See Miller,

supra at 995 (noting it was fatal to Miller’s claimed Section 9545(b)(1)(iii) 

exception that neither the United States nor the Pennsylvania Supreme 

Courts have held that Alleyne applies retroactively to cases where the 

judgment of sentence is final). Appellant points out that the United States 

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7 Appellant’s arguments asserting the governmental interference and newly 

discovered fact exceptions of Section 9545(b)(1)(ii) are advanced in an 

attempt to excuse his filing his PCRA petition more than 60 days after the 

date of the decision in Alleyne. Appellant’s Brief at 15-20; see 42 

Pa.C.S.A. § 9545(b)(2). Because of our disposition, we need not reach 

these claims.
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Supreme Court has held that its retroactivity jurisprudence as clarified in 

Teague v. Lane, 489 U.S. 288 (1989), does not restrict the authority of 

states to give broader effect than required by the Teague decision. 

Appellant’s Brief at 23, citing Danforth v. Minnesota, 552 U.S. 264, 266 

(2008). However, this Court lacks the judicial power to decide that question 

for the purposes of the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(iii) 

(allowing a time-bar exception for “a constitutional right that was recognized 

by the Supreme Court of the United States or the Supreme Court of 

Pennsylvania ... and has been held by that court to apply retroactively”) 

(emphasis added).8

Based on the foregoing, we conclude Appellant has failed to plead and 

prove the applicability of an exception to the timeliness requirements of the 

PCRA, therefore, we agree with the PCRA court that his petition is untimely, 

and that the PCRA court and this Court are without jurisdiction to address 

Appellant’s substantive claims. See Cristina, supra. Accordingly, we 

affirm the PCRA court’s May 14, 2015 order dismissing Appellant’s PCRA 

petition.

Order affirmed.

____________________________________________

8 Additionally, this Court, after applying the Teague principles to Alleyne, 

has opined, “the fundamental fairness of the trial or sentencing is not 

seriously undermined, and Alleyne is not entitled to retroactive effect in [a] 

PCRA setting.” Riggle, supra at 1067.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/2016