J-S41035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PABLO URBINA-NEVAREZ,

Appellant No. 2081 MDA 2014

Appeal from the PCRA Order November 17, 2014

in the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002745-2005

BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JULY 17, 2015

Appellant, Pablo Urbina-Nevarez, appeals pro se from the order 

dismissing his second petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.

We take the following facts from the PCRA court’s September 9, 2014 

Rule 907 Notice and our independent review of the record. On September 

11, 2006, a jury convicted Appellant of two counts each of corrupt 

organizations, possession of a controlled substance, and possession with 

intent to deliver a controlled substance, and one count each of criminal 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S41035-15

- 2 -

conspiracy and criminal use of a communication facility.1 The charges 

related to Appellant’s involvement in a major cocaine trafficking ring. On 

September 26, 2006, the court imposed an aggregate sentence of not less 

than seventeen-and-one-half nor more than thirty-five years’ incarceration, 

which included a mandatory minimum pursuant to 18 Pa.C.S.A. § 7508. The 

court denied Appellant’s post-sentence motions on October 11, 2006. 

Appellant timely appealed, but failed to file a Rule 1925(b) statement, see

Pa.R.A.P. 1925(b), and this Court dismissed the appeal on March 20, 2007. 

On February 13, 2008, Appellant filed a timely pro se first PCRA 

petition. Appointed counsel filed an amended petition, and the court held a 

hearing on November 10, 2008. The court granted PCRA relief, reinstating 

Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely notice 

of appeal and Rule 1925(b) statement. This Court affirmed Appellant’s 

judgment of sentence on February 8, 2010, and our Supreme Court denied 

his petition for allowance of appeal on August 25, 2010. (See 

Commonwealth v. Urbina-Nevarez, No. 996 A.2d 16 (Pa. Super. 2010) 

(unpublished memorandum), appeal denied, 4 A.3d 1054 (Pa. 2010)).

____________________________________________

1 18 Pa.C.S.A. §§ 911(b)(3) and 911(b)(4), 35 P.S. §§ 780-113(a)(16) and 

(a)(30), and 18 Pa.C.S.A. §§ 903 and 7512, respectively. 
J-S41035-15

- 3 -

On September 14, 2011, Appellant filed a counseled first PCRA 

petition.2 The court held an evidentiary hearing on January 24, 2012, and 

set a briefing schedule. Appellant filed his brief on March 23, 2012, and the 

Commonwealth filed a responsive brief on March 26, 2012. The court denied 

the petition on May 12, 2012. This Court affirmed the denial of PCRA relief 

on July 16, 2013, and Appellant did not file a petition for allowance of appeal 

with our Supreme Court. (See Commonwealth v. Urbina-Nevarez, 82 

A.3d 1067 (Pa. Super. 2013) (unpublished memorandum)).

On June 6, 2014, Appellant filed the instant, second, PCRA petition pro 

se. On September 9, 2014, the court notified Appellant of its intent to 

dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). On 

September 17, 2014, Appellant responded and, on November 17, 2014, the 

court dismissed the petition. On December 12, 2014, Appellant filed a 

timely notice of appeal. On December 16, 2014, the PCRA court ordered 

Appellant to file a Rule 1925(b) statement, which he has failed to do. See 

Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on January 26, 

2015. See Pa.R.A.P. 1925(a).

Appellant raises one issue for our review: “Whether the PCRA court 

erred by dismissing without a hearing [his] PCRA petition alleging and 

____________________________________________

2 Because the court had granted reinstatement of Appellant’s direct appellate 

rights nunc pro tunc, it properly treated this petition as a first PCRA petition 

pursuant to Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa. 

Super. 2010).
J-S41035-15

- 4 -

establishing [that] [he] is entitled to relief for the illegal imposition of the 

mandatory minimum sentence?” (Appellant’s Brief, at 4). No relief is due.

We review an order dismissing a petition under the PCRA 

in the light most favorable to the prevailing party at the PCRA 

level. This review is limited to the findings of the PCRA court 

and the evidence of record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error. This Court may affirm a PCRA court’s decision on any 

grounds if the record supports it. We grant great deference to 

the factual findings of the PCRA court and will not disturb those 

findings unless they have no support in the record. However, we 

afford no such deference to its legal conclusions. Further, where 

the petitioner raises questions of law, our standard of review is 

de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal 

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

Before we are able to consider the merits of Appellant’s claim on 

appeal, however, we must determine whether the PCRA court properly found 

that the petition was untimely, thus depriving us of jurisdiction to decide its 

merits.

It is well-settled that:

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

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

sentence became final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration 

of the time for seeking such review. 42 Pa.C.S.[A.] § 

9545(b)(3). 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. The 

timeliness requirements apply to all PCRA petitions, 

regardless of the nature of the individual claims raised 

therein. The PCRA squarely places upon the petitioner the 
J-S41035-15

- 5 -

burden of proving an untimely petition fits within one of the 

three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations 

and footnote omitted; emphasis added).3

Here, Appellant concedes that his PCRA petition was not filed within 

one year after his judgment became final on November 24, 2010, which was 

ninety days after the Pennsylvania Supreme Court denied his petition for 

allowance of appeal. (See Appellant’s Brief, at 5); see also S.Ct Rule 13. 

He argues, however, that his petition is timely pursuant to an exception 

found at 42 Pa.C.S.A. § 9545(b)(1). (See id. at 6).4 We disagree.

Section 9545 of the PCRA provides only three exceptions that allow for 

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a 

claim because of governmental interference; (2) the discovery of previously 

unknown facts that would have supported a claim; and (3) a newlyrecognized constitutional right. See 42 Pa.C.S.A. § 9545(b)(1). When a 

petition is filed outside the one-year time limit, petitioners must plead and 

____________________________________________

3 Appellant states that his legality of sentence challenge is non-waivable. 

(See Appellant’s Brief, at 4, 8). However, we observe that, “although 

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 enumerated exceptions 

thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 

2007).

4 Appellant also refers to the “AEDPA” (Antiterrorism and Effective Death 

Penalty Act). (See Appellant’s Brief, at 8-9). This appears to be a 

typographical error because he does not expressly discuss that Act, and it is 

irrelevant to his claim. (See id.).
J-S41035-15

- 6 -

prove the applicability of one of the three exceptions to the PCRA timing 

requirements. See Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. 

Super. 2012) (“If the petition is determined to be untimely, and no 

exception has been pled and proven, the petition must be dismissed without 

a hearing because Pennsylvania courts are without jurisdiction to consider 

the merits of the petition.”) (citation omitted). Also, a PCRA petition 

invoking one of these statutory exceptions must “be filed within 60 days of 

the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Here, Appellant attempts to claim the applicability of the newly 

recognized constitutional right exception. (See Appellant’s Brief, at 6-11); 

see also 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he argues that 

“sentencing enhancements that effect the maximum sentence must be 

determined by a [j]ury beyond a reasonable doubt[,]” and, therefore, his 

mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508 was 

unconstitutional. (Appellant’s Brief, at 7; see id. at 9-11). Appellant’s 

argument fails.

We first observe that Appellant repeatedly insists his issue is not 

premised on Alleyne v. United States, 133 S.Ct. 2151 (2013), but that it 

is grounded instead on the holdings of Commonwealth v. Cardwell, 105

A.3d 748 (Pa. Super. 2014), and Commonwealth v. Thompson, 93 A.3d 

478 (Pa. Super. 2014). (See Appellant’s Brief, at 6, 9). 

However, it is well-settled that:
J-S41035-15

- 7 -

Subsection (iii) of Section 9545(b)(1) has two 

requirements. First, it provides that the right asserted is a 

constitutional right that was recognized by the Supreme 

Court of the United States or th[e Pennsylvania Supreme 

C]ourt after the time provided in this section. Second, it 

provides that the right “has been held” by “that court” to apply 

retroactively. Thus, a petitioner must prove that there is a 

“new” constitutional right and that the right “has been 

held” by that court to apply retroactively . . . to cases on 

collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa. 

2007)) (some emphasis in original; some emphasis added). 

Here, contrary to Appellant’s argument, Thompson and Cardwell

cannot form the basis of the newly recognized constitutional right exception 

because they are Superior Court decisions. See id.; see also Cardwell, 

supra at 748; Thompson, supra at 478. In addition, the cases did not 

(and could not) create a new constitutional right, but instead decided that 

mandatory minimum sentences imposed pursuant to 18 Pa.C.S.A. § 7508 

were unconstitutional based on the right recognized by Alleyne5and its 

progeny. See Cardwell, supra at 754-55; Thompson, supra at 493-94. 

Therefore, because Cardwell and Thompson are not United States or 

Pennsylvania Supreme Court cases announcing a new constitutional right, 

____________________________________________

5 The Court in Alleyne announced the rule that “any fact that increases the 

mandatory minimum [sentence] is an ‘element’ that must be submitted to 

the jury.” Alleyne, supra at 2155.
J-S41035-15

- 8 -

Appellant’s attempt to premise a claim of a newly recognized constitutional 

right on them fails.

Moreover, even if Appellant had relied on Alleyne itself, his attempt to 

claim the newly recognized constitutional right exception would fail. First, 

Alleyne was decided on June 17, 2013, and Appellant filed his PCRA petition 

on June 6, 2014 in contravention of the rule that a PCRA petition seeking to 

invoke a timeliness exception must “be filed within 60 days of the date the 

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). 

Additionally:

[N]either 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. This 

is fatal to Appellant’s argument regarding the PCRA time-bar. 

This Court has recognized that 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, 994 (Pa. Super. 2014) (citations 

omitted).

Accordingly, consistent with this Court’s holding in Miller, we conclude 

that the PCRA court properly dismissed Appellant’s petition where he failed 

to plead and prove a timeliness exception6to the PCRA time-bar. See 

Rykard, supra at 1183.7

____________________________________________

6 To the extent Appellant attempts to plead and prove the previously 

unknown fact exception on the basis of a newspaper article allegedly printed 

(Footnote Continued Next Page)
J-S41035-15

- 9 -

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015

(Footnote Continued) _______________________

on May 3, 2014. (see Appellant’s Brief, at 6; Motion for PCRA Relief, 

6/06/14, at Exhibit 1), we note that he abandons any argument in support 

of this claim, and it is waived. (See id. at 7-11); see also Pa.R.A.P. 

2119(a)-(b). Moreover, any argument in this regard would lack merit. See 

Commonwealth v. Edmiston, 65 A.3d 339, 570-71 (Pa. 2013), cert. 

denied, 134 S.Ct. 639 (2013) (“[T]o constitute facts which were unknown to 

a petitioner and could not have been ascertained by the exercise of due 

diligence, the information must not be of public record[.]”)

7 We also observe that, even if we had jurisdiction to review Appellant’s 

claim on its merits, we would deem his issue waived because he failed to file 

a court-ordered Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii); 

Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issue not raised in 

a Rule 1925(b) statement deemed waived).