J-S71033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE GUERRIOS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 693 EDA 2017

Appeal from the PCRA Order January 13, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005874-2008

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 19, 2019

Appellant Jose Guerrios appeals from the order dismissing as untimely 

his serial petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541-9546. Appellant claims that the PCRA court erred in dismissing his 

PCRA petition as untimely because he met the new constitutional right 

exception. See 42 Pa.C.S. § 9545(b)(1)(iii). We affirm.

On November 13, 2008, Appellant entered a negotiated guilty plea to 

third-degree murder, carrying a firearm without a license, and possessing 

instruments of crime. On December 1, 2008, the trial court sentenced 

Appellant to an aggregate term of twenty-five to fifty years’ incarceration.1

Appellant did not immediately file a post-sentence motion or a direct appeal.

 

1 Appellant’s conviction for third-degree murder was subject to a five-year 

mandatory minimum sentence for visible possession of a firearm. See 42 

Pa.C.S. § 9712.
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On June 17, 2009, Appellant filed a pro se PCRA petition requesting that 

his appeal rights be reinstated nunc pro tunc. The PCRA court appointed 

counsel who filed an amended PCRA petition. On August 6, 2010, the PCRA 

court denied Appellant’s petition, finding that Appellant did not request a direct

appeal. Appellant appealed, and this Court affirmed on September 8, 2011. 

On March 23, 2012, the Pennsylvania Supreme Court denied Appellant’s 

petition for allowance of appeal.

On December 6, 2012, Appellant filed a “Petition for Modification of 

Sentence Nunc Pro Tunc,” claiming that PCRA counsel was ineffective for 

failing “to file post verdict motions on [Appellant’s] behalf upon request.” Pet. 

for Modification of Sentence Nunc Pro Tunc, 12/6/12, at 2 (unpaginated). On 

October 9, 2014, the PCRA court responded to Appellant’s December 6, 2012 

filing, stating in relevant part:

[W]hether you classified your request as a PCRA petition or as a 

“Petition for Modification of Sentence Nunc Pro Tunc,” the outcome 

would be the same: your request has come too late after you 

should have taken action.

* * *

On December 6, 2012, nearly four years after your judgment of 

sentence became final, you filed a “Petition for Modification of 

Sentence Nunc Pro Tunc.” We received this petition in chambers 

on February 7, 2013. In this petition, you advanced the claim that 

your PCRA counsel, John P. Cotter, Esquire, was ineffective for 

failure to file a motion for modification of sentence. Motions for 

modification of sentence are post-sentence motions that must be 

raised within ten days of imposition of sentence. Pa.R.Crim.P. 

720. In your petition for modification, you allege that PCRA 

counsel John Cotter, Esquire, was ineffective for failure to file a 

petition for modification of sentence. However, had Mr. Cotter 

filed such a petition, it would have been denied for being untimely, 
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since Mr. Cotter was appointed well past the period within which 

he could have filed a post-sentence motion. Mr. Cotter thus could 

not have been ineffective for failing to file a motion for 

modification because there was no basis to gain relief at that point 

in time.

The PCRA is the “sole means of obtaining collateral relief and 

encompasses all other common law and statutory remedies for 

the same purpose that exist when this subchapter takes effect.” 

However, a PCRA petition must be filed within one year [from

when] the judgment of sentence becomes final. 42 Pa.C.S. § 

9545(b). Judgment of sentence becomes final upon the 

conclusion of all direct review, or upon the expiration of time for 

seeking review. 42 Pa.C.S. § 9545(b)(3). Thus, your petition for 

modification of sentence was untimely. A PCRA petition not filed 

within one year of the date that your judgment of sentence 

became “final” must allege, and you would be required to prove, 

one of the exceptions enumerated in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii), as well as the “due diligence” provision of § 9545(b)(2). Your 

petition for modification of sentence does not allege any of the 

enumerated exceptions, nor could you even have proven that you 

acted with due diligence.

PCRA Ct. Op., 5/25/17, at Ex. A (footnotes omitted and emphasis in original). 

The court did not enter an order dismissing or denying Appellant’s filing.2 

On March 9, 2015, Appellant filed the instant PCRA petition. On October 

5, 2015, PCRA counsel entered his appearance on behalf of Appellant, and on

March 9, 2016, filed an amended PCRA petition. Relevant to this appeal, 

Appellant claimed that his “decision to plead guilty was, in part, based on the 

Commonwealth’s intention to seek a mandatory minimum sentence . . . under 

 

2 We note that the PCRA court’s October 9, 2014 letter in response to 

Appellant’s petition for modification of sentence nunc pro tunc is not in the 

certified record or entered on the docket. The court, however, has attached 

the October 9, 2014 letter to its Pa.R.A.P. 1925(a) opinion. See Trial Ct. Op., 

5/25/17, at Ex. A.
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Alleyne v. United States[, 570 U.S. 99 (2013),] and Commonwealth v. 

Hopkins, 117 A.3d 247 (Pa. 2015).” Am. PCRA Pet., 3/9/16, at 4.

On December 1, 2016, the PCRA issued a notice of intent to dismiss 

Appellant’s PCRA petition pursuant to Pa.R.Crim.P. 907. On December 22, 

2016, Appellant filed a pro se response to the Rule 907 notice. On January 

13, 2017, the PCRA court dismissed Appellant’s petition as untimely.

Appellant filed a timely pro se appeal and court-ordered Pa.R.A.P. 

1925(b) statement of matters complained of on appeal. The PCRA court filed 

a responsive Pa.R.A.P. 1925(a) opinion.3

Appellant’s sole issue on appeal states: “Whether the trial court erred in 

dismissing the Appellant’s [PCRA] petition as untimely where, as here, the 

petition was filed within the sixty day period permitted by 42 Pa.C.S. [§] 

 

3 On September 7, 2017, after PCRA counsel failed to file a brief on behalf of 

Appellant, this Court remanded the appeal for the PCRA court to determine 

whether counsel had abandoned Appellant. Order, 9/7/17. On October 18, 

2017, the PCRA court issued a response to this Court’s order. In its response, 

the PCRA court stated that it was unclear why PCRA counsel was appointed 

following Appellant’s March 9, 2015 PCRA petition. Resp. to Order, 10/18/17. 

The PCRA court further found that “as counsel was not appointed for the 

purpose of the instant appeal, and as petitioner was adequately advised of 

this fact, counsel did not abandon petitioner.” Id.

After reviewing this Court’s order, the PCRA court’s response, the certified 

record, the docket, and PCRA counsel’s entry of appearance and filings on 

Appellant’s behalf, we concluded that Appellant was still represented by PCRA 

counsel. Order, 9/7/17. Accordingly, because PCRA counsel had not been 

granted leave to withdraw from representation, this Court directed our

Prothonotary to re-establish the briefing schedule. Id. On July 24, 2018, 

PCRA counsel filed a brief on Appellant’s behalf.
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9545(b)(1)(iii) and (b)(2) as it was, in fact, filed prior to the commencement 

of that time period.” Appellant’s Brief at v (full capitalization omitted).

Appellant argues that he meets the new exception under 42 Pa.C.S. § 

9545(b)(1)(iii). Id. at 8. Appellant claims that he filed the instant PCRA 

petition in response to the PCRA court’s 2014 letter, and that Alleyne and 

Hopkins apply to his case because he pled guilty to avoid the mandatory 

minimum provisions of 42 Pa.C.S. § 9712. Id. at 6, 8-9. Appellant further 

suggests that he timely raised this claim because the PCRA court by filing his 

petition before the Pennsylvania Supreme Court decided Hopkins. Id. at 6.

Our standard of review for the dismissal of a PCRA petition is limited to 

“whether the record supports the PCRA court’s determination and whether the 

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90 

A.3d 1, 4 (Pa. Super. 2014) (citation omitted).

It is well-settled that “the timeliness of a PCRA petition is a jurisdictional 

[pre-]requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 

2015) (citation omitted). “A PCRA petition, including a second or subsequent 

petition, shall be filed within one year of the date the judgment becomes final.” 

Id. (citation omitted). 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.” Id. (quoting 42 Pa.C.S. § 9545(b)(3)).
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Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence becomes final only if the petitioner pleads and proves 

one of the following three statutory exceptions: 

(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 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).4

The new constitutional right exception has two requirements: (1) “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 the 

time provided in this section,” and (2) “the right ‘has been held’ by ‘that court’

to apply retroactively.” Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. 

Super. 2014) (citation and brackets omitted). The Miller Court explained 

that “a new rule of constitutional law is applied retroactively to cases on 

 

4 Moreover, a petition invoking any one of the exceptions “shall be filed within 

60 days of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2). We note that the amended subsection (b)(2) providing that a 

petition must be filed within one year of the date the claim could have been 

presented applies only to claims arising on or after December 24, 2017; 

Appellant’s claims predate that date. 2018 Pa. Legis. Serv. Act 2018-146 

(West).
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collateral review only if the United States Supreme Court or our Supreme 

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

at 995 (citations omitted).

Instantly, there is no dispute that Appellant failed to file the instant 

PCRA petition within one year of his conviction becoming final. In an attempt 

to overcome the PCRA time bar, Appellant contends that he meets 42 Pa.C.S. 

§ 9545(b)(1)(iii) in light of Alleyne and Hopkins. 

In Alleyne, the Supreme Court held that “any fact that, by law, 

increases the penalty for a crime must be treated as an element of the offense, 

submitted to a jury, rather than a judge, and found beyond a reasonable 

doubt.” Commonwealth v. Washington, 142 A.3d 810, 812 (Pa. 2016) 

(citing Alleyne, 570 U.S. at 116). The Hopkins Court did not rule on the 

retroactive application of Alleyne. Rather, it held that numerous provisions 

of 18 Pa.C.S. § 6317 were constitutionally infirm under Alleyne. See 

Hopkins, 117 A.3d at 262; see also Commonwealth v. Whitehawk, 146 

A.3d 266, 271 (Pa. Super. 2016).

Approximately a year after Hopkins, however, the Pennsylvania 

Supreme Court decided Washington. There, the Court “h[e]ld that Alleyne

does not apply retroactively to cases pending on collateral review.” 

Washington, 142 A.3d at 820.

Here, Appellant’s sentence became final in January of 2009, when he 

did not appeal his conviction. See 42 Pa.C.S. § 9545(b)(3). Because the 

Pennsylvania Supreme Court has held that Alleyne does not apply 
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retroactively on collateral review, Appellant’s attempt to invoke the new 

constitutional right exception fails.5 See 42 Pa.C.S. § 9545(b)(1)(iii); 

Washington, 142 A.3d at 820; Whitehawk, 146 A.3d at 271. Accordingly, 

the PCRA court did not err in dismissing Appellant’s petition as untimely. See 

Lawson, 90 A.3d at 4.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/19

 

5 We acknowledge that in Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 

2018), the Pennsylvania Supreme Court clarified that a PCRA petitioner may 

challenge the legality of his sentence based on Alleyne when (1) Alleyne

rendered the sentence illegal before the judgment of sentence became final 

and (2) the claim is raised in a timely filed PCRA petition. See DiMatteo, 177 

A.3d at 192. Appellant, however, fails to meet either of these requirements 

as Alleyne was decided nearly five years after his sentence became final and 

the instant petition was not timely filed. See id.