J-S22035-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS VEGA-DIAZ,

Appellant No. 1530 MDA 2016

Appeal from the PCRA Order September 1, 2016

in the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002489-1995

BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MAY 26, 2017

Appellant, Luis Vega-Diaz, appeals, pro se, from the order of 

September 1, 2016, dismissing, without a hearing, his second petition filed 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we 

affirm.

We take the underlying facts and procedural history in this matter 

from this Court’s February 18, 1997 memorandum on direct appeal, and our 

independent review of the certified record.

On December 7, 1995, following trial, a jury convicted Appellant of 

numerous drug offenses. On February 26, 1996, the trial court sentenced 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S22035-17

- 2 -

Appellant to an aggregate term of incarceration of not less than five nor 

more than fifteen years. Appellant subsequently filed a direct appeal. On

February 18, 1997, this Court affirmed the judgment of sentence. (See 

Commonwealth v. Vega-Diaz, No. 01042 Philadelphia 1996, unpublished 

memorandum (Pa. Super. filed February 18, 1997)). Appellant did not seek 

leave to appeal to the Pennsylvania Supreme Court.

On November 3, 1997, Appellant, acting pro se, filed a timely PCRA 

petition. The court appointed counsel, and, after an evidentiary hearing, 

denied the PCRA petition on October 25, 1999. On May 11, 2000, we 

dismissed Appellant’s appeal for failure to file a brief.

On March 4, 2016, Appellant, acting pro se, filed the instant PCRA1

petition seeking to vacate his sentence pursuant to Alleyne v. United 

States, 133 S.Ct. 2151 (2013). On June 28, 2016, the PCRA court issued 

notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of 

Criminal Procedure 907(1). Appellant filed a response on July 11, 2016. On 

____________________________________________

1 Appellant titled his petition as a motion to modify sentence. The trial court 

correctly deemed the pleading to be a second PCRA petition. See 

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal 

denied, 944 A.2d 756 (Pa. 2008) (so long as it falls within ambit of PCRA, 

any petition filed after judgment of sentence is final is to be treated as PCRA 

petition.). 
J-S22035-17

- 3 -

September 1, 2016, the PCRA court dismissed the petition as untimely. The 

instant, timely appeal followed.2

On appeal, Appellant raises the following questions for our review:

A. . . . Has plain error turned this present case at bar, into 

something other than a legal proceeding?

B. . . . Has this present case at bar been contaminated with 

a[] (manifest constitutional error committed by the 

Commonwealth)?

C. Has the [A]ppellant been sentenced under the sentencing 

scheme, the unconstitutional sentencing scheme by the 

Commonwealth?

D. [Has] Appellant [] continued to litigate his claim of being 

sentenced outside the guide lines since (1995-[]96), which 

the State Supreme Court has now deemed 

[u]nconstitutional?

E. Is [A]ppellant entitled to the relief he seeks, under the 

cases herein incoroperated (sic)?

F. Was the sentence imposed unconstitutional and an error 

on the court?

G. Has [A]ppellant properly preserved this issue during direct 

appeal?

H. Should the new ruling of unconstitutional sentence be 

applied to Appellant’s case . . .?

(Appellant’s Brief, at iii) (unnecessary capitalization omitted). 

____________________________________________

2 On September 28, 2016, the PCRA court ordered Appellant to file a concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On 

October 7, 2016, Appellant filed a timely Rule 1925(b) statement. On 

November 3, 2016, the PCRA court filed a statement in lieu of an opinion. 

See Pa.R.A.P. 1925(a).
J-S22035-17

- 4 -

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Great deference is granted to the findings of the PCRA court, and 

these findings will not be disturbed unless they have no support 

in the certified record. . . . 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his PCRA petition on March 4, 2016. The PCRA 

provides that “[a]ny petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of 

sentence became final on March 20, 1997, thirty days after this Court 

affirmed the judgment of sentence and Appellant did not seek leave to 

appeal to the Pennsylvania Supreme Court. See Pa.R.A.P. 1113(a); 42 

Pa.C.S.A. § 9545(b)(3). Because Appellant did not file his current petition 

until March 4, 2016, the petition is facially untimely. See 42 Pa.C.S.A. § 

9545(b)(1). Thus, he must plead and prove that he falls under one of the 

exceptions at Section 9545(b) of the PCRA. See id.

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully proves that:
J-S22035-17

- 5 -

(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)(i)-(iii). 

Further, a petitioner who wishes to invoke any of the above exceptions 

must file the petition “within [sixty] days of the date the claim could have 

been presented.” 42 Pa.C.S.A. § 9545(b)(2). The Pennsylvania Supreme 

Court has repeatedly stated that it is an appellant’s burden to plead and 

prove that one of the above-enumerated exceptions applies. See, e.g.,

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. 

denied, 555 U.S. 916 (2008). 

In the instant matter, Appellant appears to contend that his petition is 

timely under Section 9545(b)(1)(iii), specifically that the United States 

Supreme Court’s decision in Alleyne, supra renders his sentence illegal. 

(See Appellant’s Brief, at 1-5). We disagree. 

Initially, we note that the fact that Appellant challenges the legality of 

his sentence does not allow him to evade the PCRA’s timeliness 

requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the 
J-S22035-17

- 6 -

Pennsylvania Supreme Court rejected this contention. The Fahy Court 

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

PCRA, claims must still first satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Fahy, supra at 223 (citation omitted). Thus, 

Appellant cannot elude the PCRA’s timeliness requirements based on a claim 

of an illegal sentence. See id. 

Moreover, “a new rule of constitutional law is applied retroactively to 

cases on collateral review only if the United States Supreme Court or the 

Pennsylvania Supreme Court specifically holds it to be retroactively 

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266, 

271 (Pa. Super. 2016) (citation omitted). Neither Court has held that 

Alleyne is applied retroactively. Further, our Supreme Court has 

unequivocally held that Alleyne does not apply retroactively to cases 

pending on collateral review. See Commonwealth v. Washington, 142 

A.3d 810, 820 (Pa. 2016).

Here, Appellant was sentenced in 1996. His judgment of sentence 

became final in 1997. Thus, this matter is clearly on collateral review, and 

his PCRA petition is facially untimely. Because Alleyne does not apply 

retroactively to cases on collateral review, it cannot afford Appellant relief. 

See Washington, supra at 820; see also Commonwealth v. Riggle, 119 

A.3d 1058, 1064 (Pa. Super. 2015); Commonwealth v. Miller, 102 A.3d 

988, 995 (Pa. Super. 2014).
J-S22035-17

- 7 -

Thus, Appellant’s PCRA petition is untimely with no statutory exception 

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly, 

we affirm the order of the PCRA court.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/26/2017