J-S56043-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AMILCAR RIVAS-RIVERA,

Appellant

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 434 MDA 2018

Appeal from the PCRA Order February 16, 2018

in the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000099-2012, 

CP-36-CR-0000100-2012, CP-36-CR-0000101-2012, 

CP-36-CR-0000102-2012, CP-36-CR-0000108-2012, 

CP-36-CR-0000120-2012

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 03, 2018

Amilcar Rivas-Rivera (“Rivas-Rivera”), pro se, appeals from the Order 

dismissing his third Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

On February 6, 2013, Rivas-Rivera entered an open guilty plea to 54 

felony charges related to a spree of burglaries in September and October of

2011. The trial court sentenced Rivas-Rivera to an aggregate prison term of 

15 to 30 years. Rivas-Rivera filed a timely Motion to Modify, which was denied

on February 26, 2013. Rivas-Rivera did not file an appeal.

Rivas-Rivera thereafter timely filed a PCRA Petition, which was denied. 

This Court affirmed the denial, and our Supreme Court denied allowance of 

appeal. See Commonwealth v. Rivas-Rivera, 12 A.3d 1138 (Pa. Super. 
J-S56043-18

- 2 -

2015), appeal denied, 130 A.3d 1289 (Pa. 2015). Rivas-Rivera filed a 

second PCRA Petition, which was dismissed as untimely filed. This Court 

affirmed the dismissal, our Supreme Court denied allowance of appeal, and 

the Supreme Court of the United States denied certiorari. See 

Commonwealth v. Rivas-Rivera, 161 A.3d 382 (Pa. Super. 2017) 

(unpublished memorandum), appeal denied, 181 A.3d 283 (Pa. 2018), cert. 

denied, Rivas-Rivera v. Pennsylvania, 2018 WL 3744485 (2018). 

Rivas-Rivera filed the instant PCRA Petition on December 5, 2017. 

Subsequently, the PCRA court issued a Pa.R.Crim.P. 907 Notice. On February 

16, 2018, the PCRA court dismissed Rivas-Rivera’s third Petition as untimely.

1

 

Rivas-Rivera filed a timely Notice of Appeal, and a Pa.R.A.P. 1925(b) Concise 

Statement. 

On appeal, Rivas-Rivera raises the following questions for our review:

1. Whether an illegal sentence in the context of time credit is a 

patent and obvious error?

2. Whether the [PCRA] court retains jurisdiction to correct a patent 

and obvious error that it has made specifically in the context of 

time credit, [notwithstanding] any jurisdictional requirements?

____________________________________________

1 We note that Rivas-Rivera’s appeal from the dismissal of his second PCRA 

Petition was pending at the time he filed the instant Petition. However, the 

PCRA court did not decide Rivas-Rivera’s current PCRA Petition until our 

Supreme Court denied allowance of appeal on Rivas-Rivera’s second PCRA 

Petition. See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (noting 

that “an appellant’s PCRA appeal is pending before a court, a subsequent PCRA 

petition cannot be filed until the resolution of review of the pending PCRA 

petition by the highest state court in which review is sought, or upon the 

expiration of the time for seeking such review.”). Thus, we will address RivasRivera’s current Petition.
J-S56043-18

- 3 -

3. Whether 42 Pa.C.S.A. § 5505 or the PCRA time requirement 

impinge [on] the [PCRA] [court’s] inherent power to correct a 

[patent] and obvious error in the context of time credit?

4. Whether the [PCRA] court abused its discretion when it dismissed 

[Rivas-Rivera’s] third PCRA Petition as untimely and meritless []

despite [] its power to correct a [patent] and obvious error in the 

context of time credit?

5. Because [Rivas-Rivera] met the [sixty-day] requirement found in 

42 Pa.C.S.A. § 9545(2) and one of the three timeliness exceptions 

outlined in 42 Pa.C.S.A. § 9545, did the [PCRA] court commit legal 

error when deciding that [Rivas-Rivera] did not invoke [any] of 

the 42 Pa.C.S.A. § 9545 requirements[,] including the [sixty-day]

requirement?

6. Because 61 Pa.C.S.A. § 4503’s list that disqualifies offenses which 

include[] both violent and not potentially non-violent crimes does 

not include burglary, did the trial court [have] the authority to 

deny [Rivas-Rivera’s] RRRI?

Brief for Appellant at 4 (capitalization and numbering corrected). 

“On appeal from the [dismissal] of PCRA relief, our standard of review 

calls for us to determine whether the ruling of the PCRA court is supported by 

the record and free of legal error.” Commonwealth v. Nero, 58 A.3d 802, 

805 (Pa. Super. 2012) (citation omitted). 

Initially, under the PCRA, any PCRA petition “shall be filed within one 

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A 

judgment of sentence becomes final “at the conclusion of direct review, 

including discretionary review in the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s 

timeliness requirements are jurisdictional in nature and a court may not 
J-S56043-18

- 4 -

address the merits of the issues raised if the PCRA petition was not timely 

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

Here, Rivas-Rivera did not file an appeal following the denial of his 

Motion to Modify. Thus, his judgment of sentence became final on March 28,

2013, after the 30-day period to appeal to this Court had expired. See

Pa.R.A.P. 903(a). Thus, Rivas-Rivera’s instant Petition, filed on December 5, 

2017, is patently untimely. 

However, Pennsylvania courts may consider an untimely petition where 

the petitioner pleads and proves one of the three exceptions set forth at 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these 

exceptions “shall be filed within 60 days of the date the claim could have been 

presented.” Id. § 9545(b)(2); see also Albrecht, 994 A.2d at 1094. 

Here, Rivas-Rivera does not properly invoke any of the three exceptions
J-S56043-18

- 5 -

at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).2 Because Rivas-Rivera did not

successfully invoke any of the three exceptions necessary to circumvent the 

PCRA’s timeliness requirement, we lack jurisdiction to address the merits of 

his claims on appeal. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/03/2018

____________________________________________

2 We note that Rivas-Rivera attempts to invoke the newly-discovered fact 

exception, relying upon Commonwealth v. Cullen-Doyle, 164 A.3d 1239, 

1244 (Pa. 2017) (stating that a single first-degree burglary conviction was 

insufficient to evidence a history of present or past violent behavior such that 

the defendant was ineligible for RRRI). However, judicial decisions do not 

trigger the newly discovered facts exception. See Commonwealth v. Watts, 

23 A.3d 980 (Pa. 2011) (holding that “decisional law does not amount to a 

new ‘fact’ under section 9545(b)(1)(ii) of the PCRA.”). Further, Rivas-Rivera

filed the instant Petition on December 5, 2017, well over 60 days after July 

20, 2017, the date that Cullen-Doyle was decided. See Commonwealth v. 

Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating that “the sixty-day period 

[under section 9545(b)(2)] begins to run upon the date of the underlying 

judicial decision.”). Moreover, there must be jurisdiction to invoke a legality 

of sentence claim. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. 

Super. 2014) (noting that “a legality [of sentence] claim may [] be lost should 

it be raised ... in an untimely PCRA petition for which no time-bar exception

applies, thus depriving the court of jurisdiction over the claim.”).