J-S07013-16

*

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

PEDRO DEJESUS,

Appellant No. 1051 MDA 2015

Appeal from the PCRA Order May 18, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0002754-2010

BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 16, 2016

Pedro DeJesus appeals from the May 18, 2015 order dismissing his 

second PCRA petition as untimely. We affirm.

We refer to the trial court’s opinion on direct appeal for the factual 

background of this case:

[Dejesus] was convicted of a sex offense in February 2005. 

Pursuant to Megan's Law, [Dejesus] was subject to lifetime 

registration as a sex offender. Prior to being released from 

prison, [Dejesus] provided the Pennsylvania State Police the 

address of 303 West King Street, Lancaster, Pennsylvania. Upon 

[Dejesus's] release from prison on March 19, 2010, Agent 

Mscisz, of the Pennsylvania Board of Probation and Parole 

(PBPP), learned that [Dejesus] was not residing at 303 West 

King Street. [Dejesus's] mother confirmed that [Dejesus] did not 

live at her address. She further informed the agent that 

[Dejesus] was living with his sister at 222 East Philadelphia 

Street, York Pennsylvania. Following further investigation, 
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[Dejesus] was arrested for failing to register in violation of 

Megan's Law.

Trial Court Opinion, 6/23/11, at 1-2 (footnotes omitted).

Appellant was convicted by a jury of failure to comply with sexual 

offenders’ registration. The Commonwealth served notice of its intent to 

seek the five-year mandatory sentence. The trial court sentenced Appellant 

to five to fifteen years imprisonment. On direct appeal, Appellant challenged 

the sufficiency of the evidence underlying his conviction. This Court 

affirmed, Commonwealth v. Dejesus, 48 A.3d 473 (Pa.Super. 2012), and 

our Supreme Court denied allowance of appeal. Commonwealth v. 

DeJesus, 50 A.3d 124 (Pa. August 13, 2012). 

Appellant filed a pro se PCRA petition on November 8, 2012, and the 

PCRA court appointed counsel. Counsel filed an amended petition on his 

behalf, and following an evidentiary hearing, the PCRA court denied relief. 

This Court affirmed on appeal. Commonwealth v. Dejesus, 2014 Pa. 

Super. Unpub. LEXIS 3559. 

Appellant filed this, his second PCRA petition on October 23, 2014, and 

an amended version on October 26, 2015. On April 22, 2015, the PCRA 

court issued Rule 907 notice and a thorough memorandum explaining why 

Appellant’s reliance upon Alleyne v. United States, 133 S.Ct. 2151 (2013), 

for a timeliness exception was misplaced. The court subsequently dismissed 

the petition as untimely on May 18, 2015. Appellant timely appealed. He 
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presents eleven issues for our review, many of which are citations to the 

trial transcript together with a request that we pay close attention to certain 

testimony, and argument as to why he was wrongly convicted. Appellant 

also contends, however, that the United States Supreme Court decision in 

Alleyne announced a new constitutional right so as to avoid the PCRA time 

bar and that the trial court imposed an illegal and unconstitutional 

mandatory sentence. 

In reviewing the dismissal of a PCRA petition, our standard of review is 

whether the determination of the PCRA court is supported by evidence of 

record and free of legal error. Commonwealth v. Brandon, 51 A.3d 231, 

233 (Pa.Super. 2012) (citation and quotation marks omitted). Our scope of 

review “is limited to the findings of the PCRA court and the evidence of 

record, viewed in the light most favorable to the prevailing party at the trial 

level." Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014).

In order to be timely, all PCRA petitions, even second and third 

petitions, must be filed within one year after the defendant's judgment of 

sentence becomes final. 42 Pa.C.S. § 9545 (b)(1). “The PCRA's timeliness 

requirements are jurisdictional; therefore, a court may not address the 

merits of the issues raised if the petition was not timely filed.” 

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012); accord Brandon, 

supra at 234 (citing Commonwealth v. Robinson, 837 A.2d 1157, 1161 
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(Pa. 2003)) ("The timeliness requirements of the PCRA are jurisdictional in 

nature and, accordingly, a PCRA court cannot hear untimely petitions.").

"There are three exceptions to this [one-year] time requirement: (1) 

interference by government officials in the presentation of the claim; (2) 

newly discovered facts; and (3) an after-recognized constitutional right." 

Brandon, supra at 233-34; 42 Pa.C.S. § 9545(b)(1)(i-iii). "The PCRA 

squarely places upon the petitioner the burden of proving an untimely 

petition fits within one of the three exceptions." Jones, supra at 17. In 

addition, the exception must be asserted within sixty days of the date when 

the claim could have been presented. 

Appellant's judgment of sentence was affirmed by this Court on April 

10, 2012, and allowance of appeal was denied by the Supreme Court on 

August 13, 2012. Since Appellant did not seek review to the United States 

Supreme Court, his conviction became final upon expiration of the period for 

seeking review, which was ninety days later on November 13, 2012. 42 

Pa.C.S. § 9545 (b)(3) ("For purposes of this subchapter, 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.”); see U.S. 

Sup. Ct. R. 13(1) (stating petition for a writ of certiorari is timely when filed 

within 90 days after entry of the judgment). Appellant thus had until 
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November 13, 2013, to file a timely PCRA petition. The within petition, filed 

on October 23, 2014, is untimely.

However, Appellant asserts that he falls within the timeliness 

exception for a newly recognized constitutional right. He alleges that the 

United States Supreme Court recognized a new constitutional right in 

Alleyne, supra, that is implicated herein. The Court therein held that “facts 

that increase mandatory minimum sentences must be submitted to the jury” 

and must be found beyond a reasonable doubt. Alleyne, supra at 2163.

Alleyne does not provide an exception to the PCRA time-bar. Even 

assuming that Alleyne announced a new constitutional right, neither the 

United States Supreme Court nor the Pennsylvania Supreme Court has held 

that Alleyne is to be retroactively applied to cases on collateral review. See 

Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014) (“neither our 

Supreme Court, nor the United States Supreme Court has held that Alleyne

is to be applied retroactively to cases in which the judgment of sentence had 

become final.”). Thus, it does not meet the requirements for a timeliness 

exception pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).1 Appellant’s petition is 

untimely and no relief is due. 

____________________________________________

1

 As the Commonwealth notes, even assuming that Alleyne v. United 

States, 133 S.Ct. 2151 (June 17, 2013), recognized a new constitutional 

right that applied retroactively to cases where judgment of sentence had 

(Footnote Continued Next Page)
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/16/2016

(Footnote Continued) _______________________

become final, the within petition was still untimely as it was filed more than 

one year after that decision.