J-S47008-15

*Retired Senior Judge 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

EMILIO NIEVES,

Appellant No. 358 MDA 2015

Appeal from the PCRA Order entered February 6, 2015,

in the Court of Common Pleas of Lebanon County,

Criminal Division, at No(s): CP-38-CR-0000563-2002 &

CP-38-CR-0001621-2001

BEFORE: ALLEN, OTT, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.: FILED JULY 24, 2015

Emilio Nieves (“Appellant”) appeals from the order denying his petition 

for post-conviction relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

The PCRA court summarized the pertinent procedural history as 

follows:

In Action No. 1621-2001, [Appellant] was charged with 

[multiple drug and drug-related charges]. In Action No. 

[563-2002], he was charged with [two counts of 

possession with intent to deliver]. On January 6, 2003, 

[Appellant] entered a guilty plea in No. 563 and on 

January 7, 2003, he entered a plea of nolo contendere to 

the charges at No. 1621. On January 10, 2003, this Court 

imposed an aggregate sentence of fourteen (14) to thirty 

(30) years for these actions. [Appellant] filed a direct 

appeal to the Superior Court of Pennsylvania challenging 
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the discretionary aspects of his sentence. The Superior 

Court affirmed by Order of June 3, 2004. [Appellant did 

not file a petition for allowance of appeal to our Supreme 

Court.] 

On April 13, 2005, [Appellant] filed [PCRA petitions] in 

both actions. We dismissed those petitions without a 

hearing by Order of February 7, 2008. On March 5, 2008, 

[Appellant] filed a [pro se] Notice of Appeal of that Order. 

By Order of May 26, 2009, the Superior Court vacated the 

Order denying PCRA relief and remanded for us to 

reinstate [Appellant’s] appellate rights in No. 1621 and to 

conduct an evidentiary hearing in No. 563. By Order of 

May 27, 2009, we appointed counsel to represent 

[Appellant], reinstated his appellate rights in No. 1621 and 

scheduled an evidentiary hearing for No. 563. [Appellant] 

filed a Notice of Appeal in No. 1621 on June 26, 2009 and 

the Superior Court issued an Order affirming the judgment 

of sentence in No. 1621 on February 12, 2010. We 

conducted an evidentiary hearing in No. 563 on January 

26, 2010 and on July 12, 2010, we dismissed [Appellant’s] 

[PCRA] Petition in that action.

On February 14, 2012, [Appellant] filed a Motion for 

Modification of Sentence Nunc Pro Tunc in both actions 

which we denied on February 17, 2012. On June 13, 

2014, he filed a Motion for Sentence 

Correction/Modification requesting collateral relief in both 

actions. We appointed counsel to represent [Appellant] 

and issued a Rule upon the Commonwealth to show cause 

why the requested relief should not be granted. The 

Commonwealth responded on July 21, 2014. On February 

3, 2015, [Appellant] filed a counseled amended PCRA 

Petition [supplementing Appellant’s February 14, 2012 

motion], which we denied by Order of February 6, 2015. 

The Commonwealth responded to that Petition on February 

12, 2015.

PCRA Court Opinion, 4/20/15, at 1-3 (footnotes omitted). This timely appeal 

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 

1925.
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Appellant raises the following issue:

1. WHETHER [THE] TRIAL COURT ERRED WHEN IT 

IMPOSED AN ILLEGAL SENTENCE UPON [APPELLANT] IN 

LIGHT OF THE HOLDING IN ALLEYNE V. UNITED 

STATES, 133 S.Ct. 2151, 186 L.Ed.2d 314, 81 USLW 4444 

(2013)?

Appellant’s Brief at 4.

This Court’s standard of review regarding an order dismissing a 

petition under the PCRA is whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA 

court’s findings will not be disturbed unless there is no support for the 

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 

1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a 

hearing on the petition if the PCRA court determines that the petitioner’s 

claim is patently frivolous and is without a trace of support in either the 

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 

(Pa. Super. 2001).

Before addressing the issue raised by Appellant in his pro se brief, we 

must first determine whether the PCRA court properly determined that 

Appellant’s latest PCRA petition was untimely.

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation 

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor 
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the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, 

we simply do not have the legal authority to address the substantive claims” 

raised in an untimely petition. Id.

Generally, a petition for relief under the PCRA, including a second or 

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

becomes final unless the petition alleges, and the petitioner proves, an 

exception to the time for filing the petition. Commonwealth v. GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under 

these exceptions, the petitioner must plead and prove that: “(1) there has 

been interference by government officials in the presentation of the claim; or 

(2) there exists after-discovered facts or evidence; or (3) a new 

constitutional right has been recognized.” Commonwealth v. Fowler, 930 

A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition 

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

the date the claim first could have been presented.” Gamboa-Taylor, 753 

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to 

the time restrictions of the PCRA must be pled in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not 

raised before the lower court are waived and cannot be raised for the first 

time on appeal.”).
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At No. 563, Appellant’s judgment of sentence became final on or about 

July 5, 2004, after the expiration of time for filing an appeal to our Supreme 

Court. See 42 Pa.C.S.A. § 9545(b)(3). At No. 1621, Appellant’s judgment 

of sentence became final on March 13, 2012, after the expiration of the time 

for filing an appeal to our Supreme Court. Id. Thus, in order for his PCRA 

petition to be timely at No. 563, Appellant would have had to file it by July 5, 

2005. In order to be timely at No. 1621, Appellant would have had to file 

his latest PCRA petition by March 13, 2013. Because Appellant did not file 

his present petition involving both matters until June 13, 2014, it is untimely 

unless he has satisfied his burden of pleading and proving that one of the 

enumerated time-bar exceptions applies. See Commonwealth v. Beasley, 

741 A.2d 1258, 1261 (Pa. 1999).

Appellant has failed to properly raise and prove the applicability of any 

of the exceptions to the PCRA’s time restrictions. Appellant argues:

[Appellant] avers that Alleyne established a new 

constitutional right and, thereby, relieves him of the time 

limitations set forth by the Act pursuant to § 945(b)(1)(iii). 

See also, Commonwealth v. Newman, [99 A.3d 86 (Pa. 

Super. 2014) (en banc)].

Furthermore, [Appellant] has been diligently seeking 

modification of his sentence throughout his time of 

incarceration. However, his sentence has always been 

affirmed. Since Alleyne has recognized a new 

constitutional right, [Appellant’s] rights should now be 

reinstated in the interest of justice.

Appellant’s Brief at 13.
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Initially, our review of Appellant’s pro se June 13, 2014 motion, as well 

as counsel’s amended PCRA petition, supports the Commonwealth’s 

assertion that Appellant is improperly raising the PCRA’s time bar exception 

for the first time on appeal. See generally, Pa.R.A.P. 302(a); 

Commonwealth Brief at 9.

Nevertheless, the PCRA court correctly explained:

[Appellant] now claims that the aggregate sentence 

imposed in these actions on October 10, 2003 was illegal 

and that he is entitled to collateral relief on the basis of the 

United [States] Supreme Court’s subsequent holding in 

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

that case, the Supreme Court held that any fact that 

increases a mandatory minimum sentence is an element 

[of the crime] that must be submitted to a jury. 

***

The holding of Alleyne is applied retroactively only to 

cases which were pending on direct appeal at the time it 

was rendered. Commonwealth v. Newman, 99 A.2d 86 

(Pa.Super. 2014). 

PCRA Court Opinion, 4/20/15, at 3-5 (footnote omitted). 

The PCRA court then quoted extensively from this Court’s decision in 

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), in which we 

noted, “neither our Supreme Court, nor the United States Supreme Court 

have held that Alleyne applies retroactively to cases in which the judgment 

of sentence has become final.” Miller, 102 A.3d at 995. The PCRA court 

thereafter concluded:

The holding of Alleyne is inapplicable to the sentence 

imposed in these matters. Both judgments of sentence 
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had become final here, as neither of these actions was 

pending on direct appeal at the time that [the Alleyne] 

decision was entered. Thus, [Appellant’s] claim for 

collateral relief was untimely and we dismissed 

[Appellant’s] PCRA Petition for that reason.

PCRA Court Opinion, 4/20/15, at 8.

Our review of the record supports the PCRA court’s conclusion that it 

lacked jurisdiction to consider Appellant’s PCRA petition. Accordingly, we 

affirm the PCRA court’s order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015