J-S01027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS OMAR COLON-ROQUE

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1256 MDA 2017

Appeal from the PCRA Order July 14, 2017

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0003358-2014, CP-36-CR-0003369-2014

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 05, 2018

Luis Omar Colon-Roque (“Appellant”) appeals from the order denying 

his second Post Conviction Relief Act1 (“PCRA”) petition because it was

untimely filed. Appellant’s counsel, R. Russell Pugh, Esq. (“Counsel”), has 

filed a petition to withdraw pursuant to Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. 

Super. 1988) (en banc).

2

 We affirm and grant Counsel’s petition to 

withdraw.

Appellant was charged at two dockets for related incidents committed

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.

2 The Commonwealth has submitted a letter indicating it will not file an 

appellee’s brief.
J-S01027-18

- 2 -

on the same day. On April 30, 2015, he entered negotiated guilty pleas to: 

two counts of attempt to commit burglary and one count each of burglary 

and theft by unlawful taking.3 The trial court accepted the sentences 

negotiated by the parties and imposed two terms of four to eight years’

imprisonment for the two attempt counts and ten to 20 years’ imprisonment 

for burglary, all to be served concurrently.4 The ten-to-20 year sentence for

burglary was imposed pursuant to the “second strike” sentencing statute

because Appellant had a 2014 conviction for burglary. See 42 Pa.C.S.A. §

9714(a)(1) (any person convicted of a crime of violence shall, if previously 

convicted of a crime of violence, be sentenced to a minimum term of ten 

years).

Appellant did not file a direct appeal, but filed a timely pro se PCRA 

petition. The PCRA court appointed counsel, who then filed a Turner/Finley

petition to withdraw. The court subsequently denied the PCRA petition 

without a hearing, after providing Pa.R.Crim.P. 907 notice, and granted 

Counsel’s request to withdraw. Appellant took a pro se appeal, which this 

Court dismissed on December 13, 2016 for failure to submit a proper brief.5

____________________________________________

3 18 Pa.C.S.A. §§ 901(a), 3502(a)(1), and 3921(a). At the plea hearing, 

Appellant communicated through a Spanish interpreter.

4 The sentence for theft by unlawful taking merged.

5 See Commonwealth v. Colon-Roque, 359 MDA 2016 (judgment order 

Dec. 13, 2016) (Appellant’s brief consisted solely of seven rambling 

(Footnote Continued Next Page)
J-S01027-18

- 3 -

On June 13, 2017, Appellant filed the instant pro se PCRA petition, his 

second, arguing that his burglary sentence was illegal because Pennsylvania 

courts have ruled mandatory minimum statutes are unconstitutional under 

Alleyne v. United States, 570 U.S. 99 (2013), and those decisions apply 

retroactively to him. Appellant’s PCRA Pet. at 3 (unpaginated), citing

Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016) (when new 

substantive rule of constitutional law controls outcome of case, Constitution 

requires state collateral review courts to give retroactive effect to that rule); 

Commonwealth v. Wolfe, 140 A.3d 651, 663 (Pa. 2016) (42 Pa.C.S.A. §

9718, imposing mandatory minimum sentences for certain crimes against 

minors is unconstitutional pursuant to Alleyne); Commonwealth v. 

Munday, 78 A.3d 661, 666 (Pa. Super. 2013) (42 Pa.C.S.A. § 9712.1, which 

imposed mandatory minimum sentences for certain drug offenses committed 

with firearms, violates Apprendi v. New Jersey, 530 U.S. 466 (2000), as 

interpreted by Alleyne). Relying on this argument, Appellant asserted that 

his PCRA petition was timely under both 42 Pa.C.S.A. § 9545(b)(1)(ii) and 

(iii), as he was previously unaware of the “newly found evidence” of the 

judicial decisions and he was entitled to relief under a newly recognized right 

by the United States Supreme Court. Appellant’s PCRA Pet. at 3, 6. Finally, 

(Footnote Continued) _______________________

paragraphs lacking proper development or citation to relevant authority or 

record).
J-S01027-18

- 4 -

Appellant claimed his challenge to the legality of his sentence could not be 

waived.

The PCRA court issued a Rule 907 notice of its intent to dismiss the 

petition without a hearing, and on July 14, 2017, dismissed the petition as 

untimely. The court reasoned, in part, that because Appellant’s mandatory 

minimum burglary sentence was based on a prior conviction, Alleyne did 

not apply.

Appellant filed a pro se notice of appeal, and present Counsel, 

Attorney Pugh, was appointed to represent him. Counsel has now filed in 

this Court a petition to withdraw, as well as a short brief setting forth 

Appellant’s claim that his PCRA petition was timely filed. Appellant has not 

filed a response.

We first consider Counsel’s petition to withdraw. Pursuant to Turner

and Finley, counsel seeking to withdraw from PCRA representation must:

submit a “no-merit” ... brief ... to this Court, detailing the nature 

and extent of counsel’s diligent review of the case, listing the 

issues which petitioner wants to have reviewed, explaining why 

and how those issues lack merit, and requesting permission to 

withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no 

merit” letter/brief; (2) a copy of counsel’s petition to withdraw; 

and (3) a statement advising petitioner of the right to proceed 

pro se or by new counsel.

Where counsel submits a petition and no-merit letter that ... 

satisfy the technical demands of Turner/Finley, the court ... 

must then conduct its own review of the merits of the case. If 

the court agrees with counsel that the claims are without merit, 

the court will permit counsel to withdraw and deny relief.
J-S01027-18

- 5 -

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation 

omitted).

After reviewing the record and Counsel’s brief, we find Counsel has 

complied with the Turner/Finley procedural requirements. His petition to 

withdraw states that he conscientiously reviewed the record, researched 

Appellant’s issue as well as other potential issues, and has concluded there 

are no meritorious issues and thus this appeal is frivolous. Counsel further 

states that he mailed a copy of his Turner/Finley brief to Appellant and 

advised him of his right to proceed pro se or with privately retained counsel.

Meanwhile, Counsel’s Turner/Finley brief sets forth the appropriate 

procedural history of this case. Counsel argues that Appellant’s June 13, 

2017 PCRA petition was untimely, though not for the reasoning cited by the 

PCRA court. Counsel states that the petition was filed more than 60 days 

after Alleyne was decided. Counsel contends the petition did not assert a 

right to retroactive application of Alleyne, but instead prospective 

application, and thus the timing of Appellant’s petition relative to Alleyne’s

decision date is not relevant. Instead, Counsel maintains, the only pertinent 

date is the date Appellant’s judgment of sentence became final, and the 

petition was filed improperly more than one year afterward.

We next conduct an independent review of Appellant’s claim that his 

PCRA petition is timely under the timeliness exceptions at 42 Pa.C.S.A. §

9545(b)(1)(ii) and (iii).
J-S01027-18

- 6 -

“The standard of review for an order denying post-conviction relief is 

limited to whether the record supports the PCRA court’s determination, and 

whether that decision is free of legal error.” Walters, 135 A.3d at 591 

(citation omitted).

It is well-established that “the PCRA’s timeliness requirements 

are jurisdictional in nature and must be strictly construed; courts 

may not address the merits of the issues raised in a petition if it 

is not timely filed.” Generally, a PCRA petition must be filed 

within one year of the date the judgment of sentence becomes 

final unless the petitioner meets his burden to plead and prove 

one of the exceptions enumerated in 42 Pa.C.S.A. §

9545(b)(1)(i)–(iii), which include: (1) the petitioner’s inability to 

raise a claim as a result of governmental interference; (2) the 

discovery of previously unknown facts or evidence that would 

have supported a claim; or (3) a newly-recognized constitutional 

right. 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii). [A] petition invoking 

any of the exceptions must be filed within 60 days of the date 

the claim first could have been presented. ... 42 Pa.C.S.A. §

9545(b)(2)[.]

Id. at 591-92 (some citations omitted).

In Commonwealth v. Reid, 117 A.3d 777 (Pa. Super. 2015), this 

Court noted that Alleyne “held that the Sixth Amendment requires that any 

fact — other than a prior conviction — that increases a mandatory 

minimum sentence for an offense must be submitted to the jury and proven 

beyond a reasonable doubt,” and “[i]mportantly, Alleyne did not overturn 

prior precedent that prior convictions are sentencing factors and not 

elements of offenses.” Id. at 784-85 (emphasis added), citing, inter alia,

Alleyne, 133 S.Ct. at 2160 n.1. The Reid Court then reasoned that 

because Section 9714 increases minimum sentences based on prior 
J-S01027-18

- 7 -

convictions, the statute was not unconstitutional under Alleyne. Id. at 785.

In invoking the PCRA timeliness exceptions, Appellant implicitly 

conceded that his petition was untimely on its face.

6

 Appellant’s argument

that he is entitled to relief under a newly announced constitutional right is 

meritless because his mandatory minimum sentence was based on a prior 

conviction pursuant to Section 9714, and Reid made clear that Section 9714 

fell outside the purview of Alleyne. See 42 Pa.C.S.A. § 9545(b)(1)(iii); 

Reid, 117 A.3d at 784-85. The cases relied upon by Appellant, Wolfe and 

Munday, are distinguishable because they address mandatory minimum 

statute sentences that were not based on a prior conviction, but instead on 

other facts. See Wolfe, 140 A.3d at 663; Munday, 78 A.3d at 666.

Furthermore, Appellant’s reliance on any judicial decision to invoke the 

“newly discovered evidence” exception is mistaken, as judicial decisions are 

not “newly discovered facts” for purposes of Section 9545(b)(1)(ii). See 

Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Finally, 

____________________________________________

6 Regardless, we hold the PCRA court properly determined the petition was 

untimely. Appellant was sentenced on April 30, 2015 and did not file a 

direct appeal. Thus, his judgment of sentence became final on the day his 

time for taking an appeal concluded, Monday, June 1, 2015. See 1 

Pa.C.S.A. § 1908 (when last day of any period of time referred to in any 

statute falls on Saturday, Sunday, or legal holiday, such day shall be omitted 

from computation); 42 Pa.C.S.A. § 9545(b)(3) (judgment becomes final at 

conclusion of direct review or at expiration of time for seeking review); 

Pa.R.A.P. 903(a) (appeal shall be filed within 30 days of entry of order). 

Appellant had one year, until June 1, 2016, to file a PCRA petition. See 42 

Pa.C.S.A. § 9545(b)(1); Walters, 135 A.3d at 591. The instant petition was 

filed one year later, on June 13, 2017.
J-S01027-18

- 8 -

“[a]lthough legality of sentence is always subject to review within the PCRA, 

[legality of sentencing] claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 

331 (Pa. 1999). Accordingly, we agree with both the PCRA court and 

Counsel that Appellant’s petition was not filed within one year of the date his 

judgment of sentence became final and he failed to properly plead any of the 

timeliness exceptions.7 The PCRA court properly found it lacked jurisdiction 

to hear his petition. We therefore affirm the order dismissing the PCRA 

petition and grant Counsel’s petition to withdraw. See Walters, 135 A.3d at 

591-92.

Order affirmed. Counsel’s petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/05/2018

____________________________________________

7 Although, as Counsel points out, the PCRA court stated that any petition 

relying on Alleyne had to have been filed within 60 days of that decision 

and here, Appellant filed his petition more than four years later, the court 

also held that Alleyne does not apply in this matter. See PCRA Ct. Op. at 

8. In any event, for the reasons set forth above, we hold both the court and 

Counsel properly concluded Appellant’s petition was untimely.