J-S28037-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS HERNANDEZ

Appellant No. 2014 MDA 2014

Appeal from the PCRA Order November 6, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CR-67-CR-0000737-2006

BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED JULY 10, 2015

Luis Hernandez appeals from the trial court’s order denying his third 

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

§§ 9541-9546, as untimely. Upon review, we affirm.

On November 8, 2006, Hernandez was sentenced to an aggregate 

term of 14-28 years’ incarceration,1after having been convicted by a jury of 

robbery (F-1)2and aggravated assault (F-1).3 Hernandez filed an 

unsuccessful post-sentence motion on November 20, 2006. On December 4, 

2006, Hernandez filed a notice of appeal; our Court affirmed his judgment of 

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1 Hernandez was also ordered to pay $1,600 in restitution to his victim.

2 18 Pa.C.S. § 3701(a)(1)(ii).

3 18 Pa.C.S. § 2702(a)(2).
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sentence on February 27, 2008. Hernandez filed two unsuccessful PCRA 

petitions in August 2008 and November 2009. Hernandez filed collateral 

appeals from the orders denying PCRA relief; our court affirmed the PCRA 

court orders in 2011 and 2012. On October 31, 2014, Hernandez filed the 

instant PCRA petition. On November 14, 2014, the trial court denied the 

petition, without a hearing, concluding it was untimely.

Instantly, Hernandez’s sentence became final on March 27, 2008, 

when the time within which he had to file a petition for allowance of appeal 

with the Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113. 

Hernandez filed his petition on October 31, 2014, more than six and a half 

years after that date; therefore, his petition is facially untimely. 

Hernandez, however, contends that his petition, which raises an 

Alleyne4issue, falls within the “new constitutional right” exception to the 

PCRA timeliness requirements. See 42 Pa.C.S. § 9545(b)(1)(iii). We note 

that a petition invoking an exception to the PCRA's time bar must be filed 

within sixty days of the date the claim could first have been presented. See 

42 Pa.C.S. § 9545(b)(2). The United States Supreme Court decided 

Alleyne on June 17, 2013. Hernandez did not file the instant PCRA petition

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4

In Alleyne v. United States, 133 S.Ct. 2151 (2013), a case concerning 

the application of a federal mandatory minimum statute, the Supreme Court 

held that any fact that triggers an increase in the mandatory minimum 

sentence for a crime is necessarily an element of the offense. Id. at 2163-

64. 

 
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until October 13, 2014 – more than sixteen months after Alleyne was 

decided. As such, Hernandez did not file his claim within the time prescribed 

under section 9545(b)(2). See Commonwealth v. Boyd, 923 A.2d 513, 

517 (Pa. Super. 2007) ("With regard to an after-recognized constitutional 

right, this Court has held that the sixty-day period begins to run upon the 

date of the underlying judicial decision."). Accordingly, we find that 

Hernandez’s petition is untimely, does not properly invoke a timeliness 

exception under section 9545(b), and that the trial court correctly denied his 

petition for lack of jurisdiction.5 Robinson, supra. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/10/2015

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5 Contrary to Hernandez’s belief that the trial court applied the deadly 

weapon enhancement to his sentence, the record reflects that it was not 

applied to his sentence. Moreover, in Commonwealth v. Ali, 2015 PA 

Super 45 (Pa. Super. 2015), our Court recently held that because an 

enhancement simply “directs a sentencing court to consider a different range 

of potential minimum sentences,” id. at *36, and does not mandate a 

particular sentence, the parameters of Alleyne do not apply to 

enhancement sentences. Therefore, even if the trial court had applied the 

deadly weapon enhancement to Hernandez’s sentence, it would not implicate 

the concerns in Alleyne.