J-A10044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCISCO RIVERA-MONTANEZ

Appellant No. 834 MDA 2014

Appeal from the PCRA Order April 24, 2014

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0000749-2010

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 22, 2015

Appellant Francisco Rivera-Montanez appeals from the order of the 

Cumberland County Court of Common Pleas dismissing as untimely his 

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

§ 9541 et seq. We affirm.

On January 25, 2011, a jury convicted Appellant of two counts of 

possession with intent to deliver a controlled substance (“PWID”) and one 

count of criminal conspiracy.1 On February 1, 2011, the Commonwealth 

filed notice of its intent to seek a mandatory minimum sentence pursuant to 

____________________________________________

1 35 Pa.C.S. § 780-113(a)(30), 18 Pa.C.S. § 903(a)(1), respectively. 
J-A10044-15

- 2 -

18 Pa.C.S. § 7508(a)(2).2 On March 22, 2011, the trial court sentenced 

Appellant to an aggregate sentence of seven-to-ten years’ imprisonment.3

____________________________________________

2

 18 Pa.C.S. § 7508(a)(2) provides:

(a) General rule.--Notwithstanding any other provisions 

of this or any other act to the contrary, the following 

provisions shall apply:

. . . 

(2) A person who is convicted of violating section 

13(a)(14), (30) or (37) of The Controlled Substance, Drug, 

Device and Cosmetic Act where the controlled substance or 

a mixture containing it is classified in Schedule I or 

Schedule II under section 4 of that act and is a narcotic 

drug shall, upon conviction, be sentenced to a mandatory 

minimum term of imprisonment and a fine as set forth in 

this subsection:

. . . 

(ii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least ten 

grams and less than 100 grams; three years in prison and 

a fine of $15,000 or such larger amount as is sufficient to 

exhaust the assets utilized in and the proceeds from the 

illegal activity; however, if at the time of sentencing the 

defendant has been convicted of another drug trafficking 

offense: five years in prison and $30,000 or such larger 

amount as is sufficient to exhaust the assets utilized in and 

the proceeds from the illegal activity; and

(iii) when the aggregate weight of the compound or 

mixture containing the substance involved is at least 100 

grams; five years in prison and a fine of $25,000 or such 

larger amount as is sufficient to exhaust the assets utilized 

in and the proceeds from the illegal activity; however, if at 

the time of sentencing the defendant has been convicted of 

another drug trafficking offense: seven years in prison and 

$50,000 or such larger amount as is sufficient to exhaust 

(Footnote Continued Next Page)
J-A10044-15

- 3 -

On April 21, 2011, Appellant filed a notice of appeal. This Court 

affirmed the judgment of sentence on May 11, 2012. Appellant did not file a 

petition for allowance of appeal with the Supreme Court of Pennsylvania.

On July 31, 2012, Appellant filed a pro se PCRA petition. The PCRA 

court appointed counsel, who filed an amended petition on November 16, 

2012. On December 10, 2012, the trial court held a hearing and, on 

February 11, 2013, it denied the petition. On March 13, 2013, Appellant 

filed a timely notice of appeal. This Court affirmed the denial of the PCRA 

petition on November 18, 2013.

On December 26, 2013, Appellant filed the instant PCRA petition, his 

second. The PCRA court appointed the same counsel who represented 

Appellant for his first PCRA petition. Counsel filed a Turner/Finley4letter 

and a request for leave to withdraw as court-appointed PCRA counsel. On 

March 20, 2014, the PCRA court granted counsel’s request to withdraw. On 

March 27, 2014, the PCRA court issued notice of its intent to dismiss the 

(Footnote Continued) _______________________

the assets utilized in and the proceeds from the illegal 

activity.

3 The court sentenced Appellant to five-to-ten years’ imprisonment for the 

first PWID count, seven-to-ten years’ imprisonment for the second PWID 

count, and five-to-ten years’ imprisonment for the conspiracy count. N.T., 

3/22/2011, at 3-4. All sentences were concurrent to each other. Id. at 4.

4 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
J-A10044-15

- 4 -

PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal 

Procedure 907. On April 8, 2014, Appellant filed a response to the PCRA 

court’s notice and, on April 24, 2014, the PCRA court dismissed the PCRA 

petition.

On April 30, 2014, Appellant filed a timely notice of appeal. On August 

28, 2014, the PCRA court issued its opinion pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(a).

Appellant raises the following issue for our review:

Whether the PCRA court erred in dismissing Appellant’s 

second PCRA petition alleging the sentence imposed is 

illegal and unconstitutional because it increased the 

maximum beyond the statutory range based on facts the 

Commonwealth failed to prove by a preponderance of the 

evidence without a hearing.

Appellant’s Brief at 3.5

____________________________________________

5 Although Appellant’s statement of questions presented maintains the 

sentence imposed by the trial court exceeded the statutory maximum, his 

brief argues the sentence was unconstitutional because the trial court 

imposed a mandatory minimum. Appellant’s Brief at 7-10. Because the 

sentenced imposed is not beyond the statutory maximum, see 35 Pa.C.S. § 

780-113(f), and because Appellant’s brief argues the mandatory minimum 

imposed by the trial court is unconstitutional, we interpret Appellant’s issue 

presented to challenge his mandatory minimum sentence. 

Further, to the extent Appellant maintains the imposition of the mandatory 

minimum sentence caused his sentence to exceed the standard sentencing 

guidelines range, our finding that Appellant’s PCRA petition is untimely, and 

that he cannot challenge the mandatory minimum imposed, precludes 

review of this issue.
J-A10044-15

- 5 -

Pursuant to Pennsylvania law, no court has jurisdiction to hear an 

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079 

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157, 

1161 (Pa.2003)). The PCRA provides that a petition, “including a second or 

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

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at 

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A 

judgment is 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. § 9545(b)(3).

Three exceptions to the PCRA’s time-bar exist. The exceptions allow 

for limited circumstances under which a court may excuse the late filing of a 

PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The 

late filing of a petition will be excused if a petitioner alleges and proves:

(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 
J-A10044-15

- 6 -

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). When invoking a time-bar exception, the 

petition must “be filed within 60 days of the date the claim could have been 

presented.” 42 Pa.C.S. § 9545(b)(2).

Appellant’s judgment of conviction became final on June 11, 2012, 

when the time to seek review by the Supreme Court of Pennsylvania 

expired.6 He had one year from that date, i.e., until June 11, 2013, to file a 

timely PCRA petition. Therefore, his current petition, filed on December 26, 

2013, is facially untimely.

Appellant alleges two of the PCRA time-bar exceptions apply, the new 

constitutional-right exception and the governmental-interference exception.

Appellant maintains the mandatory minimum sentences imposed by 

the trial court are unconstitutional pursuant to Alleyne v. United States, –

–– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and claims Alleyne

established a new constitutional rule that should be applied retroactively to 

cases on collateral review. Appellant’s Brief at 7-9. He further maintains he 

did not file his PCRA petition within 60 days of the issuance of the Alleyne

____________________________________________

6 This Court affirmed Appellant’s judgement of sentence on May 11, 2012. 

Appellant had thirty days from that date to appeal to our Supreme Court. 

Pa.R.A.P. 1113(a). Thirty days from May 11, 2012 was Sunday, June 10, 

2012. Appellant, therefore, had until Monday, June 11, 2012 to file a timely 

filed a petition for allowance of appeal to our Supreme Court. See 1 Pa.C.S. 

§ 1908; Pa.R.A.P.107.
J-A10044-15

- 7 -

opinion due to government interference, reasoning the Commonwealth did 

not inform him that his sentence was unconstitutional. Id. at 9.

“[A] new rule of constitutional law is applied retroactively to cases on 

collateral review only if the United States Supreme Court or our Supreme 

Court specifically holds it to be retroactively applicable to those cases.” 

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa.Super.2014) (citing 

Commonwealth v. Phillips, 31 A.3d 317, 320 (Pa.Super.2011)).

“In Alleyne, the Supreme Court [of the United States] held that ‘facts 

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

and must be found beyond a reasonable doubt.” Miller, 102 A.3d at 994 

(quoting Alleyne, 133 S.Ct. at 2163). Neither the Supreme Court of the 

United States nor our Supreme Court, however, has found Alleyne to apply 

retroactively to cases on collateral review. Id. at 995. Appellant, therefore, 

fails to establish the new constitutional-right exception to the PCRA timebar.7

 See id. (appellant failed to establish new constitutional-right 

exception based on Alleyne).

Because Appellant filed his PCRA petition after the PCRA time-bar 

expired and because Appellant fails to establish any exception to the time-

____________________________________________

7 Because we find Appellant does not establish Alleyne created a new 

constitutional right that applied retroactively, we need not address his claim 

that government interference prevented him from filing his PCRA petition 

within 60 days of the issuance of the Alleyne opinion. 
J-A10044-15

- 8 -

bar, the PCRA court properly dismissed Appellant’s PCRA petition as 

untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/2015