Com. v. Toro, J.

J-S27024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAVIER HUMBERTO TORO A/K/A :
JAVIER HUMBERTO TORO-DELGADO :
: No. 1727 EDA 2016
Appellant :
Appeal from the PCRA Order May 16, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001159-2013,
CP-39-CR-0004647-2012, CP-39-CR-0004650-2012,
CP-39-CR-0004656-2012
BEFORE: GANTMAN, P.J., OTT, J. and PLATT, J.*
MEMORANDUM BY OTT, J.: FILED JULY 11, 2017
Javier Humberto Toro, a/k/a, Javier Humberto Toro-Delgado (Toro)
appeals, pro se, from the order entered on May 16, 2016, in the Court of
Common Pleas of Lehigh County, dismissing his second petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.,
without a hearing. In this timely appeal, Toro claims his sentence is illegal
pursuant to the United States Supreme Court decision in Alleyne v. United
States, 133 S.Ct. 2151 (2013).1 After a thorough review of the submissions
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Alleyne held that any fact that, by law, increased the penalty for a crime
is an element of that crime and must, therefore, be submitted to the jury
and found beyond a reasonable doubt. Because mandatory minimum
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by the parties, relevant law, and the certified record, we find that Toro’s
PCRA petition was untimely filed and therefore we are without jurisdiction to
address the substance of his claim. Accordingly, we affirm the order denying
him relief.2
Instantly, the certified record demonstrates Toro entered into an open
plea, regarding four separate docket numbers, before the Honorable William
E. Ford on September 19, 2013. Toro pled guilty to two counts of robbery
and single counts of theft by unlawful taking, simple assault, disorderly
conduct, and driving while under suspension.3 On November 4, 2013,
following a presentence investigation and sentencing hearing, Toro received
_______________________
(Footnote Continued)
sentences increase the penalty, any factor relied upon to impose the
mandatory minimum sentence must be submitted to the jury. Although
Toro cites two different mandatory minimum sentencing statues in his
Appellant’s brief, we believe he is referring 42 Pa.C.S. § 9712, which
imposed a five-year mandatory minimum sentence for visibly possessing a
firearm during the commission of a crime of violence.
2
The PCRA court did not address the timeliness issue. However, the
Commonwealth has argued that Toro’s petition was untimely and, as
timeliness is a jurisdictional issue, we may raise that issue sua sponte. See
Commonwealth v. Blystone, 119 A.3d 306, 311 (Pa. 2015) (appellate
court may raise issue of jurisdiction sua sponte). We further note,
“According to the ‘right-for-any-reason’ doctrine, appellate courts are not
limited by the specific grounds raised by the parties or invoked by the court
under review, but may affirm for any valid reason appearing as of record.”
Commonwealth v. Fant, 146 A.3d 1254, 1265 n.13 (Pa. 2016).
3
18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 2701(a)(1), 5503(a)(4) and 75
Pa.C.S. § 1543(a), respectively. In exchange for the plea, several other
charges, including several firearms charges and additional robbery charges
were withdrawn.
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an aggregate term of 10 – 20 years’ incarceration. The sentences on the
robbery charges were 10 – 20 years’ each; all sentences were concurrent.
Toro did not file a direct appeal. Accordingly, his sentence became final on
December 4, 2013, when the 30-day period allowed for filing a timely appeal
expired.
On October 30, 2014, Toro filed his first PCRA petition. Counsel was
appointed, the PCRA court denied him relief and on February 26, 2016, a
panel of our Court affirmed. See Commonwealth v. Toro, 2016 WL
764775 (2/26/2016) (unpublished memorandum).
On April 26, 2016, more than 27 months after his sentence became
final, Toro filed this, his second PCRA petition, alleging his sentence was
illegal pursuant to the U.S. Supreme Court case, Alleyne v. United States,
supra. Toro claims that Alleyne, which essentially rendered void a majority
of Pennsylvania’s mandatory minimum sentencing statutes, retroactively
voided his sentence, rendering it illegal. The PCRA court, following
Pa.R.Crim.P. 907 notice, denied Toro relief, having determined he had not
presented a prima facie case for relief. While we agree with the PCRA court
that Toro is not entitled to relief, we arrive at our resolution by different
reasoning.
A PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the petitioner’s judgment of sentence
became final. Here, Toro’s judgment of sentence became final on December
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4, 2013. The instant petition was not filed until April 26, 2016. The petition
is facially untimely by more than two years. However, Toro attempts to
avoid the timeliness requirements by invoking Alleyne. Toro argues
Alleyne provided a substantive change to the law and thereby rendered the
mandatory minimum sentencing statue that was applied to him void ab initio
and, therefore, he is entitled to retroactive application of Alleyne. He
further claims Alleyne removes his argument from the timeliness rules
imposed by the PCRA.4 His argument unavailing.
We have searched the certified record and nowhere is it recorded that
Toro was subjected to the mandatory minimum sentencing provisions of 42
Pa.C.S. § 9712. Even if Toro’s petition had been timely filed, Alleyne does
not apply to his sentence, Toro would not obtain any benefit therefrom.
Because Toro’s petition is untimely, and he has not pled nor proven
any timeliness exception, he is not entitled to relief. Therefore, we affirm
the PCRA court’s order of May, 16, 2016, albeit on different grounds.
Order affirmed.
____________________________________________
4
To be clear, Toro is not claiming entitlement to any of the three statutory
timeliness exceptions. He is arguing that such requirements do not apply
given that his sentence was never legal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2017
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