J-S27024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAVIER HUMBERTO TORO A/K/A 

JAVIER HUMBERTO TORO-DELGADO 

Appellant

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1727 EDA 2016

Appeal from the PCRA Order May 16, 2016

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0001159-2013, 

CP-39-CR-0004647-2012, CP-39-CR-0004650-2012, 

CP-39-CR-0004656-2012

BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*

MEMORANDUM BY OTT, J.: FILED JULY 11, 2017

Javier Humberto Toro, a/k/a, Javier Humberto Toro-Delgado (Toro) 

appeals, pro se, from the order entered on May 16, 2016, in the Court of 

Common Pleas of Lehigh County, dismissing his second petition filed 

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

without a hearing. In this timely appeal, Toro claims his sentence is illegal 

pursuant to the United States Supreme Court decision in Alleyne v. United 

States, 133 S.Ct. 2151 (2013).1 After a thorough review of the submissions 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Alleyne held that any fact that, by law, increased the penalty for a crime 

is an element of that crime and must, therefore, be submitted to the jury 

and found beyond a reasonable doubt. Because mandatory minimum 

(Footnote Continued Next Page)
J-S27024-17

- 2 -

by the parties, relevant law, and the certified record, we find that Toro’s 

PCRA petition was untimely filed and therefore we are without jurisdiction to 

address the substance of his claim. Accordingly, we affirm the order denying 

him relief.2

Instantly, the certified record demonstrates Toro entered into an open 

plea, regarding four separate docket numbers, before the Honorable William 

E. Ford on September 19, 2013. Toro pled guilty to two counts of robbery 

and single counts of theft by unlawful taking, simple assault, disorderly 

conduct, and driving while under suspension.3 On November 4, 2013, 

following a presentence investigation and sentencing hearing, Toro received 

(Footnote Continued) _______________________

sentences increase the penalty, any factor relied upon to impose the 

mandatory minimum sentence must be submitted to the jury. Although 

Toro cites two different mandatory minimum sentencing statues in his 

Appellant’s brief, we believe he is referring 42 Pa.C.S. § 9712, which 

imposed a five-year mandatory minimum sentence for visibly possessing a 

firearm during the commission of a crime of violence.

2 The PCRA court did not address the timeliness issue. However, the 

Commonwealth has argued that Toro’s petition was untimely and, as 

timeliness is a jurisdictional issue, we may raise that issue sua sponte. See

Commonwealth v. Blystone, 119 A.3d 306, 311 (Pa. 2015) (appellate 

court may raise issue of jurisdiction sua sponte). We further note, 

“According to the ‘right-for-any-reason’ doctrine, appellate courts are not 

limited by the specific grounds raised by the parties or invoked by the court 

under review, but may affirm for any valid reason appearing as of record.” 

Commonwealth v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016).

3 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2701(a)(1), 5503(a)(4) and 75 

Pa.C.S. § 1543(a), respectively. In exchange for the plea, several other 

charges, including several firearms charges and additional robbery charges 

were withdrawn.
J-S27024-17

- 3 -

an aggregate term of 10 – 20 years’ incarceration. The sentences on the 

robbery charges were 10 – 20 years’ each; all sentences were concurrent. 

Toro did not file a direct appeal. Accordingly, his sentence became final on 

December 4, 2013, when the 30-day period allowed for filing a timely appeal 

expired. 

On October 30, 2014, Toro filed his first PCRA petition. Counsel was 

appointed, the PCRA court denied him relief and on February 26, 2016, a 

panel of our Court affirmed. See Commonwealth v. Toro, 2016 WL 

764775 (2/26/2016) (unpublished memorandum). 

On April 26, 2016, more than 27 months after his sentence became 

final, Toro filed this, his second PCRA petition, alleging his sentence was 

illegal pursuant to the U.S. Supreme Court case, Alleyne v. United States, 

supra. Toro claims that Alleyne, which essentially rendered void a majority 

of Pennsylvania’s mandatory minimum sentencing statutes, retroactively 

voided his sentence, rendering it illegal. The PCRA court, following 

Pa.R.Crim.P. 907 notice, denied Toro relief, having determined he had not 

presented a prima facie case for relief. While we agree with the PCRA court 

that Toro is not entitled to relief, we arrive at our resolution by different 

reasoning.

A PCRA petition, including a second or subsequent petition, must be 

filed within one year of the date the petitioner’s judgment of sentence 

became final. Here, Toro’s judgment of sentence became final on December 
J-S27024-17

- 4 -

4, 2013. The instant petition was not filed until April 26, 2016. The petition 

is facially untimely by more than two years. However, Toro attempts to 

avoid the timeliness requirements by invoking Alleyne. Toro argues 

Alleyne provided a substantive change to the law and thereby rendered the 

mandatory minimum sentencing statue that was applied to him void ab initio

and, therefore, he is entitled to retroactive application of Alleyne. He 

further claims Alleyne removes his argument from the timeliness rules 

imposed by the PCRA.4 His argument unavailing.

We have searched the certified record and nowhere is it recorded that 

Toro was subjected to the mandatory minimum sentencing provisions of 42 

Pa.C.S. § 9712. Even if Toro’s petition had been timely filed, Alleyne does 

not apply to his sentence, Toro would not obtain any benefit therefrom. 

Because Toro’s petition is untimely, and he has not pled nor proven 

any timeliness exception, he is not entitled to relief. Therefore, we affirm 

the PCRA court’s order of May, 16, 2016, albeit on different grounds.

Order affirmed.

____________________________________________

4 To be clear, Toro is not claiming entitlement to any of the three statutory 

timeliness exceptions. He is arguing that such requirements do not apply

given that his sentence was never legal.
J-S27024-17

- 5 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2017