J-S33004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 2050 MDA 2016

Appeal from the PCRA Order Entered November 23, 2016

In the Court of Common Pleas of Berks County

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

BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2017

Appellant, Victor Maldonado-Rivera, appeals pro se from the postconviction court’s November 23, 2016 order dismissing, as untimely, his 

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 

9541-9546. We affirm.

The facts of Appellant’s case are unnecessary to our disposition of his 

appeal. The procedural history of his underlying convictions and direct 

appeal were previously summarized by this Court as follows:

On May 25, 2006, Appellant entered into an open guilty 

plea to two counts of involuntary deviate sexual intercourse, one 

count of aggravated assault, and one count of indecent assault. 

Sentencing was deferred pending a Megan’s Law evaluation by 

the Sexual Offenders Assessment Board. On October 4, 2006, 

the trial court determined that Appellant was a sexually violent 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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predator, and sentenced him to an aggregate term of fourteen 

and one-half to twenty-nine years of imprisonment, plus a fiveyear probationary term. The trial court denied Appellant’s 

subsequently filed post-sentence motion. Appellant filed a direct 

appeal to this Court. In an unpublished memorandum filed on 

March 11, 2009, this Court affirmed Appellant’s judgment of 

sentence. Commonwealth v. Maldonado-Rivera, 972 A.2d 

557 (Pa. Super. 2009). Our Supreme Court denied Appellant’s 

petition for allowance of appeal on August 26, 2009. 

Commonwealth v. Maldonado-Rivera, 983 A.2d 727 (Pa. 

2009).

Commonwealth v. Maldonado-Rivera, No. 215 MDA 2012, unpublished 

memorandum at 1-2 (Pa. Super. filed June 12, 2012).

Appellant thereafter filed a timely PCRA petition (which was styled as a 

petition for writ of habeas corpus), arguing that he was denied the right to 

counsel at his preliminary arraignment. That petition was denied by the 

PCRA court without the appointment of counsel. On appeal, this Court 

remanded, directing that counsel be appointed. See id. On remand, 

appointed PCRA counsel filed a ‘no-merit’ letter and petition to withdraw 

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988), 

and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). The PCRA court 

ultimately granted counsel’s petition to withdraw and denied Appellant’s 

petition. This Court affirmed on appeal. Commonwealth v. MaldonadoRivera, 106 A.3d 166 (Pa. Super. 2014) (unpublished memorandum). 

Appellant then filed another pro se PCRA petition on April 13, 2015, 

this time challenging the legality of his sentence under Alleyne v. United 

States, 133 S.Ct. 2151 (2013). The PCRA court denied that petition as 

being untimely filed, and this Court affirmed on appeal. See 
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Commonwealth v. Maldonado-Rivera, 141 A.3d 593 (Pa. Super. 2016) 

(unpublished memorandum). 

On July 5, 2016, Appellant filed the petition underlying the present 

appeal, which he titled, “Motion to Correct[] Illegal And Unconstitutional 

Sentence ‘Nunc Pro Tunc.’” Therein, Appellant argued that several 

mandatory minimum sentences imposed in his case under 42 Pa.C.S. § 

9718(a)(3) were illegal because that provision of section 9718 was not 

added until November of 2004, which was after he committed the offenses 

triggering the application of those sentences. On September 19, 2016, the 

PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss 

Appellant’s petition without a hearing on the basis that it was untimely filed. 

Appellant filed a pro se response, but the court dismissed his petition by 

order entered on November 23, 2016. 

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) statement. 

The PCRA court filed a Rule 1925(a) opinion on February 8, 2017. Herein, 

Appellant states two issues for our review:

A. Did the sentencing court err when it sentenced [Appellant], 

illegally, under a sentencing statute that did not exist at the time 

of the offense, violating the ex post facto laws of the Pa. and the 

U.S. [C]onstitutions, and did counsel fail to inform [A]ppellant 

that the court did not have the authority to sentence [A]ppellant 

under the amended sentencing statute rendering him ineffective 

for failing to perfect a direct appeal following a [j]udgment of 

sentence?

B. Whether the sentencing court can waive the ex post facto

violation issue as untimely[?]
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Appellant’s Brief at 1 (unnumbered).

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). 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 

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 
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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 November 24, 

2009, ninety days after our Supreme Court denied his petition for allowance 

of appeal from this Court’s decision affirming his judgment of sentence. 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). Accordingly, Appellant had 

until November 24, 2010, to file a timely PCRA petition, making his petition 

filed in July of 2016 facially untimely. Thus, for this Court to have 

jurisdiction to review the merits of Appellant’s claims, he must prove that he 

meets one of the exceptions to the timeliness requirements set forth in 42 

Pa.C.S. § 9545(b). 

Instantly, Appellant does not present any argument that he meets a 

timeliness exception. Instead, he seemingly relies on the fact that legality of 

sentencing issues cannot be waived; while that is true, such claims must 

first satisfy the PCRA’s time limits. See Commonwealth v. Fahy, 737 A.2d 
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214, 223 (Pa. 1999) (holding that claims challenging the legality of sentence 

are subject to review within PCRA, but must first satisfy the PCRA’s time 

limits). Additionally, Appellant’s suggestion that his trial/appellate attorneys 

acted ineffectively by not raising this legality of sentence issue also do not 

meet any timeliness exception. See Commonwealth v. Wharton, 886 

A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective 

assistance of counsel will not overcome the jurisdictional timeliness 

requirements of the PCRA.”) (citations omitted).

Because Appellant has failed to plead and prove the applicability of any 

timeliness exception to his claims, the PCRA court did not err in dismissing 

his untimely petition.1

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/6/2017

____________________________________________

1 We also point out that, even if Appellant had pled and proven the 

applicability of an exception under section 9545(b)(1)(i)-(iii), he would be 

unable to meet the 60-day requirement of section 9545(b)(2), as he could 

have immediately discovered and presented his legality of sentence claim at 

the time those ostensibly illegal sentences were imposed in 2006. 

Therefore, Appellant’s petition was properly denied for this reason as well.