J-S69016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUAN BARBON

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 792 MDA 2018

Appeal from the PCRA Order April 24, 2018

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

No(s): CP-40-CR-0001530-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 28, 2018

Juan Barbon appeals pro se from the trial court’s order dismissing his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

On September 11, 2013, a jury convicted Barbon of two counts each of 

aggravated assault and simple assault, and one count each of criminal 

conspiracy and recklessly endangering another person. On October 21, 2013, 

Barbon was sentenced to an aggregate term of 8-16 years’ imprisonment. 

The charges stemmed from Barbon’s involvement in a high school gang-type 

fight, where he struck a juvenile in the wrist with a machete, nearly severing 
J-S69016-18

- 2 -

the victim’s arm. Trial Court Opinion, 8/14/14, at 1. Barbon filed 

unsuccessful post-sentence motions and a counseled direct appeal.

1

 

On February 24, 2017, Barbon filed a pro se PCRA petition. Attached to 

his petition was a handwritten request to the court to appoint him a public 

defender. On October 27, 2017, the trial court entered an order appointing 

Jeffrey Yelen, Esquire, as PCRA counsel. On December 27, 2017, Attorney 

Yelen filed a motion to withdraw as counsel. On January 24, 2018, the court 

gave Barbon Pa.R.Crim.P. 907 notice of its intention to dismiss his petition. 

Barbon did not respond to the Rule 907 notice. On April 24, 2018, the court 

dismissed Barbon’s petition and granted counsel’s motion to withdraw. On 

May 14, 2018, Barbon filed a timely pro se notice of appeal. He presents one 

issue for our consideration: Whether the PCRA court erred in failing to review 

Barbon[’s] pro se PCRA petition where he asserts the illegality and 

discretionary aspects of his sentence? Appellant’s Pro Se Brief, at 2.2

____________________________________________

1 Eric Winter, Esquire, was direct appeal counsel. Trial counsel was Paul 

Galante, Esquire.

2 On November 16, 2018, our Court remanded this case to the trial court to 

determine whether Barbon was properly served with the court’s Pa.R.A.P. 

1925(b) order pursuant to Pa.R.Crim.P. 114. If the trial court concluded that 

Barbon was never served with the order, then it was to prepare a 

comprehensive Rule 1925(a) opinion addressing the issue Barbon raises on 

appeal and remit the record to this Court. If, however, the court concluded, 

based on record evidence, that Barbon was properly served with its Rule 

1925(b) order, the trial court was to immediately remit the record to this Court 

for consideration of the appeal. On December 5, 2018, the trial court filed an 

opinion “consistent with [the] instructions received from [our Court].” Trial 

Court Opinion, 12/5/18, at 1. In its opinion, the trial court states that Barbon’s 
J-S69016-18

- 3 -

Any petition filed under the PCRA must be filed within one year of the 

date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). For 

purposes of determining when a petitioner’s judgment becomes final under 

section 9545(b)(1), the PCRA states that “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). In 

three instances, courts will not hold PCRA petitioners to the strict one-year 

filing time frame. A PCRA petition may be filed within 60 days from the date 

the claim could have been presented when the petition alleges and the 

petitioner proves:

(1) 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; 

(2) 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

(3) 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.

____________________________________________

PCRA petition was untimely filed and did not plead or prove a viable exception 

to the PCRA timing requirements. Id. at 2. Thus, the trial court concluded

that it did not have jurisdiction to entertain Barbon’s PCRA claims. Id. 
J-S69016-18

- 4 -

42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). A petitioner has the burden to plead and 

prove these exceptions. Commonwealth v. Pursell, 749 A.2d 911, 914 (Pa. 

2000).

Instantly, Barbon was sentenced on October 21, 2013. Barbon filed 

post-sentence motions that were denied, by operation of law, on March 17, 

2014. He filed a timely direct appeal and our Court affirmed Barbon’s 

judgment of sentence on March 11, 2015. Commonwealth v. Barbon, No. 

520 MDA 2014 (Pa. Super. filed March 11, 2015) (unpublished 

memorandum).3 Barbon’s judgment of sentence became final after the time 

expired for him to file a petition for allowance of appeal to the Pennsylvania 

Supreme Court on April 11, 2015. See Pa.R.A.P. 1113. Thus, Barbon had 

____________________________________________

3 We note that the trial court’s opinion fails to recognize that the record 

contains nunc pro tunc post-sentence motions filed by Barbon on December 

20, 2016, as well as a court order, dated February 13, 2017, denying said 

motions. Because the trial court did not have jurisdiction to rule on the nunc 

pro tunc motions that were filed after our Court affirmed Barbon’s judgment 

of sentence, they are irrelevant for purposes of calculating when his judgment 

of sentence became final for PCRA timing purposes. See Commonwealth v. 

Jackson, 30 A.3d 516 (Pa. Super. 2011) (noting that 42 Pa.C.S. § 5505 allows

trial courts to correct orders where there is obvious illegality in sentence). 

Moreover, under section 5505, if no appeal had been taken within 30 days 

after the imposition of sentence, the trial court has the discretion to grant a 

request to file a post-sentence motion nunc pro tunc. Commonwealth v. 

Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (“If the trial court chooses 

to permit a defendant to file a post-sentence motion nunc pro tunc, the court 

must do so expressly [within thirty days after the imposition of the 

sentence].”). Here, a timely notice of appeal had been filed, thus the trial 

court did not have the authority to consider Barbon’s nunc pro tunc postsentence motions.
J-S69016-18

- 5 -

until April 11, 2016 to file a timely PCRA petition. Barbon, however filed the 

instant PCRA petition on February 24, 2017 – almost one year later. 

Accordingly, it is patently untimely and the PCRA court had no jurisdiction to 

entertain Barbon’s petition unless he pled and proved one of the exceptions 

to the jurisdictional time bar set forth in section 9545(b)(1). Because Barbon 

has failed to plead and prove an exception to the PCRA’s timeliness 

requirements, we affirm the trial court’s order dismissing his PCRA petition.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/28/2018

____________________________________________

4 Barbon makes a veiled claim that his sentence is illegal under Alleyne v.

United States, 133 S. Ct. 2151 (2013), because the court imposed a deadly 

weapon enhancement. In Commonwealth v. Buterbaugh, 91 A.3d 1247, 

1270 n.10 (Pa. Super. 2014), our Court noted that imposition of the deadly 

weapon sentencing enhancement does not implicate Alleyne. We also note 

that even if Barbon had been sentenced to an unconstitutional mandatory 

minimum, our Supreme Court has held that although Alleyne establishes a 

new rule of federal constitutional law, it does not apply to cases pending on 

collateral review. See Commonwealth v. Washington, 142 A.3d 810 (Pa. 

2016). Moreover, Alleyne does not meet the new constitutional right 

exception to the PCRA time bar. Commonwealth v. Riggle, 119 A.3d 1058, 

1064 (Pa. Super. 2015).