J-S41035-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PABLO URBINA-NEVAREZ,
Appellant No. 2081 MDA 2014
Appeal from the PCRA Order November 17, 2014
in the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0002745-2005
BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 17, 2015
Appellant, Pablo Urbina-Nevarez, appeals pro se from the order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.
We take the following facts from the PCRA court’s September 9, 2014
Rule 907 Notice and our independent review of the record. On September
11, 2006, a jury convicted Appellant of two counts each of corrupt
organizations, possession of a controlled substance, and possession with
intent to deliver a controlled substance, and one count each of criminal
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*
Retired Senior Judge assigned to the Superior Court.
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conspiracy and criminal use of a communication facility.1 The charges
related to Appellant’s involvement in a major cocaine trafficking ring. On
September 26, 2006, the court imposed an aggregate sentence of not less
than seventeen-and-one-half nor more than thirty-five years’ incarceration,
which included a mandatory minimum pursuant to 18 Pa.C.S.A. § 7508. The
court denied Appellant’s post-sentence motions on October 11, 2006.
Appellant timely appealed, but failed to file a Rule 1925(b) statement, see
Pa.R.A.P. 1925(b), and this Court dismissed the appeal on March 20, 2007.
On February 13, 2008, Appellant filed a timely pro se first PCRA
petition. Appointed counsel filed an amended petition, and the court held a
hearing on November 10, 2008. The court granted PCRA relief, reinstating
Appellant’s direct appeal rights nunc pro tunc. Appellant filed a timely notice
of appeal and Rule 1925(b) statement. This Court affirmed Appellant’s
judgment of sentence on February 8, 2010, and our Supreme Court denied
his petition for allowance of appeal on August 25, 2010. (See
Commonwealth v. Urbina-Nevarez, No. 996 A.2d 16 (Pa. Super. 2010)
(unpublished memorandum), appeal denied, 4 A.3d 1054 (Pa. 2010)).
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1
18 Pa.C.S.A. §§ 911(b)(3) and 911(b)(4), 35 P.S. §§ 780-113(a)(16) and
(a)(30), and 18 Pa.C.S.A. §§ 903 and 7512, respectively.
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On September 14, 2011, Appellant filed a counseled first PCRA
petition.2 The court held an evidentiary hearing on January 24, 2012, and
set a briefing schedule. Appellant filed his brief on March 23, 2012, and the
Commonwealth filed a responsive brief on March 26, 2012. The court denied
the petition on May 12, 2012. This Court affirmed the denial of PCRA relief
on July 16, 2013, and Appellant did not file a petition for allowance of appeal
with our Supreme Court. (See Commonwealth v. Urbina-Nevarez, 82
A.3d 1067 (Pa. Super. 2013) (unpublished memorandum)).
On June 6, 2014, Appellant filed the instant, second, PCRA petition pro
se. On September 9, 2014, the court notified Appellant of its intent to
dismiss the petition without a hearing. See Pa.R.Crim.P. 907(1). On
September 17, 2014, Appellant responded and, on November 17, 2014, the
court dismissed the petition. On December 12, 2014, Appellant filed a
timely notice of appeal. On December 16, 2014, the PCRA court ordered
Appellant to file a Rule 1925(b) statement, which he has failed to do. See
Pa.R.A.P. 1925(b). The court filed a Rule 1925(a) opinion on January 26,
2015. See Pa.R.A.P. 1925(a).
Appellant raises one issue for our review: “Whether the PCRA court
erred by dismissing without a hearing [his] PCRA petition alleging and
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2
Because the court had granted reinstatement of Appellant’s direct appellate
rights nunc pro tunc, it properly treated this petition as a first PCRA petition
pursuant to Commonwealth v. Karanicolas, 836 A.2d 940, 944 (Pa.
Super. 2010).
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establishing [that] [he] is entitled to relief for the illegal imposition of the
mandatory minimum sentence?” (Appellant’s Brief, at 4). No relief is due.
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal
denied, 64 A.3d 631 (Pa. 2013) (citations omitted).
Before we are able to consider the merits of Appellant’s claim on
appeal, however, we must determine whether the PCRA court properly found
that the petition was untimely, thus depriving us of jurisdiction to decide its
merits.
It is well-settled that:
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions,
regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the
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burden of proving an untimely petition fits within one of the
three exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted; emphasis added).3
Here, Appellant concedes that his PCRA petition was not filed within
one year after his judgment became final on November 24, 2010, which was
ninety days after the Pennsylvania Supreme Court denied his petition for
allowance of appeal. (See Appellant’s Brief, at 5); see also S.Ct Rule 13.
He argues, however, that his petition is timely pursuant to an exception
found at 42 Pa.C.S.A. § 9545(b)(1). (See id. at 6).4 We disagree.
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-
recognized constitutional right. See 42 Pa.C.S.A. § 9545(b)(1). When a
petition is filed outside the one-year time limit, petitioners must plead and
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3
Appellant states that his legality of sentence challenge is non-waivable.
(See Appellant’s Brief, at 4, 8). However, we observe that, “although
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA’s time limits or one of the enumerated exceptions
thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.
2007).
4
Appellant also refers to the “AEDPA” (Antiterrorism and Effective Death
Penalty Act). (See Appellant’s Brief, at 8-9). This appears to be a
typographical error because he does not expressly discuss that Act, and it is
irrelevant to his claim. (See id.).
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prove the applicability of one of the three exceptions to the PCRA timing
requirements. See Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.
Super. 2012) (“If the petition is determined to be untimely, and no
exception has been pled and proven, the petition must be dismissed without
a hearing because Pennsylvania courts are without jurisdiction to consider
the merits of the petition.”) (citation omitted). Also, a PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant attempts to claim the applicability of the newly
recognized constitutional right exception. (See Appellant’s Brief, at 6-11);
see also 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he argues that
“sentencing enhancements that effect the maximum sentence must be
determined by a [j]ury beyond a reasonable doubt[,]” and, therefore, his
mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508 was
unconstitutional. (Appellant’s Brief, at 7; see id. at 9-11). Appellant’s
argument fails.
We first observe that Appellant repeatedly insists his issue is not
premised on Alleyne v. United States, 133 S.Ct. 2151 (2013), but that it
is grounded instead on the holdings of Commonwealth v. Cardwell, 105
A.3d 748 (Pa. Super. 2014), and Commonwealth v. Thompson, 93 A.3d
478 (Pa. Super. 2014). (See Appellant’s Brief, at 6, 9).
However, it is well-settled that:
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Subsection (iii) of Section 9545(b)(1) has two
requirements. First, it provides that the right asserted is a
constitutional right that was recognized by the Supreme
Court of the United States or th[e Pennsylvania Supreme
C]ourt after the time provided in this section. Second, it
provides that the right “has been held” by “that court” to apply
retroactively. Thus, a petitioner must prove that there is a
“new” constitutional right and that the right “has been
held” by that court to apply retroactively . . . to cases on
collateral review.
Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011)
(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649-50 (Pa.
2007)) (some emphasis in original; some emphasis added).
Here, contrary to Appellant’s argument, Thompson and Cardwell
cannot form the basis of the newly recognized constitutional right exception
because they are Superior Court decisions. See id.; see also Cardwell,
supra at 748; Thompson, supra at 478. In addition, the cases did not
(and could not) create a new constitutional right, but instead decided that
mandatory minimum sentences imposed pursuant to 18 Pa.C.S.A. § 7508
were unconstitutional based on the right recognized by Alleyne5 and its
progeny. See Cardwell, supra at 754-55; Thompson, supra at 493-94.
Therefore, because Cardwell and Thompson are not United States or
Pennsylvania Supreme Court cases announcing a new constitutional right,
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5
The Court in Alleyne announced the rule that “any fact that increases the
mandatory minimum [sentence] is an ‘element’ that must be submitted to
the jury.” Alleyne, supra at 2155.
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Appellant’s attempt to premise a claim of a newly recognized constitutional
right on them fails.
Moreover, even if Appellant had relied on Alleyne itself, his attempt to
claim the newly recognized constitutional right exception would fail. First,
Alleyne was decided on June 17, 2013, and Appellant filed his PCRA petition
on June 6, 2014 in contravention of the rule that a PCRA petition seeking to
invoke a timeliness exception must “be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Additionally:
[N]either our Supreme Court, nor the United States Supreme
Court has held that Alleyne is to be applied retroactively to
cases in which the judgment of sentence had become final. This
is fatal to Appellant’s argument regarding the PCRA time-bar.
This Court has recognized that a new rule of constitutional law is
applied retroactively to cases on collateral review only if the
United States Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014) (citations
omitted).
Accordingly, consistent with this Court’s holding in Miller, we conclude
that the PCRA court properly dismissed Appellant’s petition where he failed
to plead and prove a timeliness exception 6 to the PCRA time-bar. See
Rykard, supra at 1183.7
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6
To the extent Appellant attempts to plead and prove the previously
unknown fact exception on the basis of a newspaper article allegedly printed
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015
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(Footnote Continued)
on May 3, 2014. (see Appellant’s Brief, at 6; Motion for PCRA Relief,
6/06/14, at Exhibit 1), we note that he abandons any argument in support
of this claim, and it is waived. (See id. at 7-11); see also Pa.R.A.P.
2119(a)-(b). Moreover, any argument in this regard would lack merit. See
Commonwealth v. Edmiston, 65 A.3d 339, 570-71 (Pa. 2013), cert.
denied, 134 S.Ct. 639 (2013) (“[T]o constitute facts which were unknown to
a petitioner and could not have been ascertained by the exercise of due
diligence, the information must not be of public record[.]”)
7
We also observe that, even if we had jurisdiction to review Appellant’s
claim on its merits, we would deem his issue waived because he failed to file
a court-ordered Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii);
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any issue not raised in
a Rule 1925(b) statement deemed waived).
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