J-S46009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAY ALONZO, :
:
Appellant : No. 18 MDA 2014
Appeal from the PCRA Order Entered September 18, 2013,
In the Court of Common Pleas of Luzerne County,
Criminal Division, at No. CP-40-CR-0000046-2002.
BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 14, 2014
Appellant, Jay Alonzo, appeals from the denial of his fourth petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541–9546. We affirm.
We previously summarized the facts and early procedural history of
this case as follows:
On September 17, 2002, a jury convicted Appellant of
three counts each of possession with intent to deliver a
controlled substance (“PWID”) and simple possession, and one
count each of possession of drug paraphernalia and receiving
stolen property. On October 28, 2002, the court imposed an
aggregate sentence of eighteen (18) to thirty-six (36) years’
imprisonment. This Court affirmed Appellant’s judgment of
sentence on January 13, 2004. See Commonwealth v.
Alonzo, 847 A.2d 754 (Pa. Super. 2004) (unpublished
memorandum). Appellant did not seek further review.
J-S46009-14
On January 10, 2005, Appellant timely filed his first PCRA
petition claiming, inter alia, trial counsel was ineffective for
failing to call Mr. Selwin King as a witness. Specifically,
Appellant alleged Mr. King would have testified he actually
possessed the stolen gun at issue in Appellant’s case. On
February 25, 2005, following a hearing, the court denied
Appellant relief. This Court affirmed on February 3, 2006, and
the Supreme Court denied allowance of appeal. See
Commonwealth v. Alonzo, 897 A.2d 513 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 588 Pa. 762, 903
A.2d 1232 (2006).
On November 9, 2006, Appellant filed a second PCRA
petition, which the court denied on May 30, 2007.[1] This
[2]
Court affirmed on July 16, 2008, and the Supreme Court
denied allowance of appeal. See Commonwealth v. Alonzo,
959 A.2d 956 (Pa. Super. 2008) (unpublished memorandum),
appeal denied, 600 Pa. 726, 963 A.2d 466 (2009).
Commonwealth v. Alonzo, 1807 MDA 2010, 34 A.3d 240 (Pa. Super. filed
September 28, 2011) (unpublished memorandum).
Appellant filed a third PCRA petition on May 11, 2010, which was
dismissed on September 30, 2010, following a hearing. This Court affirmed
the dismissal of the petition on September 28, 2011, holding that we lacked
jurisdiction because the third PCRA petition was untimely, and Appellant
failed to satisfy the newly-discovered-facts exception to the PCRA’s
timeliness requirements. Alonzo, 1807 MDA 2010 (unpublished
1
While not noted in that prior memorandum, Appellant also filed a petition
for writ of habeas corpus in federal district court on September 7, 2006,
which was denied on July 11, 2008. Alonzo v. Wakefield, 2008 WL
2761899 (W.D.Pa. 2008) (not reported in F.Supp.2d).
2
On March 14, 2008, pursuant to a judgment order, we remanded for the
parties to file new briefs.
-2-
J-S46009-14
memorandum at 8). Our Supreme Court denied Appellant’s petition for
allowance of appeal on February 1, 2012. Commonwealth v. Alonzo, 814
MAL 2011, 37 A.3d 1193 (Pa. filed Feb. 1, 2012).
The instant PCRA petition, Appellant’s fourth, was filed on April 4,
2013. Upon the PCRA court’s June 28, 2013 issuance of notice of its intent
to dismiss the petition pursuant to Pa.R.Crim.P. 907, Appellant filed an
objection on September 4, 2013. The PCRA court dismissed the PCRA
petition on September 18, 2013. Appellant filed the instant timely appeal on
October 8, 2013. Both the PCRA court and Appellant complied with
Pa.R.A.P. 1925.
In his statement of questions involved, Appellant raises the following
issues:
I. Did the PCRA court error when it ruled that Appellant was not
entitled to this otherwise untimely PCRA petition in accords with
42 Pa.C.S.A., § 9545(b)(1)(i), in that, Appellant is serving a
statutorily illegal sentence?
II. Did the PCRA court error when it erroneously ruled that it
lacked jurisdiction to correct Appellant’s illegal sentence, thereby
failing to exercise it’s [sic] inherent power to correct an illegal
sentence at any time; and is Appellant actually innocent by
statue, thereby causing a miscarriage of justice to occur, thus
violating Appellant’s Pennsylvania and United States
constitutional right to due process?
II. Did trial counsel render ineffective assistance of counsel
when he failed to apprehend the sentencing laws and therefore
failing to object to this illegal sentence as was all appellant [sic]
counsel?
-3-
J-S46009-14
Appellant’s Brief at 4 (full capitalization omitted).
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips,
31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,
877 A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for them in the certified record. Id.
(citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes
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.” 42 Pa.C.S.
§ 9545(b)(3).
Nevertheless, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
-4-
J-S46009-14
and (iii), is met.3 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
As noted previously, we affirmed Appellant’s judgment of sentence on
January 13, 2004. The record does not reflect that Appellant sought review
in the Pennsylvania Supreme Court. Accordingly, Appellant’s judgment of
sentence became final on February 12, 2004, thirty days after this Court
affirmed the judgment of sentence, and the period to file a petition for
allowance of appeal expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.
3
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
-5-
J-S46009-14
Thus, the instant PCRA petition, filed more than nine years after the
judgment of sentence became final, is patently untimely. 42 Pa.C.S. §
9545(b)(1).
Appellant acknowledges that his petition is patently untimely but
asserts that the exception identified at 42 Pa.C.S. § 9545(b)(1)(i) is
applicable. Appellant’s Brief at 9. In support, Appellant argues that his
consecutive sentences were illegal “where said sentence should have
merged,” and he therefore is serving a sentence “that exceeds the maximum
as provided for by the statute . . . .” Id. at 9, 16. Even assuming,
arguendo, that Appellant’s sentence was “illegal,” the PCRA court correctly
dismissed Appellant’s petition without a hearing.
First, there was no error in Appellant’s sentence, let alone an obvious
illegality. In his direct appeal in 2004, Appellant asserted that his sentence
was manifestly excessive because it was “above the aggravated range based
upon improper considerations.” Alonzo, 1855 MDA 2002 (unpublished
memorandum at 6). We held therein that “Appellant received a legal
sentence” and as an appeal from the discretionary aspects of sentence, it did
not represent an abuse of discretion by the sentencing court. Id. at 7–10.
Further, in denying Appellant’s writ of habeas corpus, the federal district
court noted that Appellant’s claim of an excessive sentence did not raise any
constitutional questions. The district court stated, “Here, the state courts
-6-
J-S46009-14
found that the sentencing court imposed a legal sentence within the
statutory limits and that the sentencing court gave sufficient reasons to
justify its imposition of the maximum penalty.” Alonzo v. Wakefield, 2008
WL 2761899 at *10.
Second, even if there was an obvious illegality in Appellant’s sentence,
the PCRA court did not have jurisdiction to consider it. Commonwealth v.
Jackson, 30 A.3d 516 (Pa. Super. 2011). We stated in Jackson that when
the one-year filing deadline of 42 Pa.C.S. § 9545 has expired and no
statutory exception has been proven, a PCRA court cannot invoke inherent
jurisdiction to correct orders, judgments and decrees, “even if the error is
patent and obvious.” Id. at 523. This Court continued:
Our holding is consistent with the policy underlying the PCRA.
The legislature amended the PCRA in 1995 to establish a strict
one-year filing deadline for PCRA petitions. The statute, as
amended, incorporates three exceptions to the one-year filing
deadline. The legislature never intended, nor have our courts
permitted, any equitable exceptions beyond those stated in the
statute itself. See [Commonwealth v.] McKeever, [947 A.2d
782 (Pa. Super. 2008)] supra. Although the one-year deadline
is strictly applied, it nevertheless provides sufficient opportunity
to discover errors in sentences. If an error exists in a sentence
that is clearly erroneous such that a trial court could modify the
order absent statutory authority under section [42 Pa.C.S.]
5505, the petitioner is afforded adequate time under section
9545 to discover the error during the course of the direct
appeals process or within one year of the judgment of sentence
becoming final. Beyond this time-period, courts are without
jurisdiction to offer any form of relief. See [Commonwealth
v.] Perrin, [947 A.2d 1284 (Pa. Super. 2008)] supra.
Id.
-7-
J-S46009-14
We conclude that Appellant has not established the applicability of any
of the exceptions to the PCRA timeliness requirements and, thus, the PCRA
court properly dismissed Appellant’s petition as untimely. Therefore, we lack
jurisdiction to reach the merits of the appeal. See Commonwealth v.
Taylor, 67 A.3d 1245, 1249 (Pa. 2013) (“PCRA time requirement mandatory
and jurisdictional in nature; court cannot ignore it and reach merits of
petition.”); Commonwealth v. Hernandez, 79 A.3d 649, 655 (Pa. Super.
2013) (holding that Superior Court lacks jurisdiction to reach merits of
appeal from untimely PCRA petition). Because the PCRA petition was
untimely and no exceptions apply, the PCRA court lacked jurisdiction to
address the claims presented. Likewise, we lack jurisdiction to reach the
merits of the appeal. Commonwealth v. Johnson, 803 A.2d 1291, 1294
(Pa. Super. 2002).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2014
-8-