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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES VASQUEZ, JR.
Appellant No. 1794 MDA 2015
Appeal from the PCRA Order September 16, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001511-2007
CP-36-CR-0001527-2007
CP-36-CR-0005118-2009
CP-36-CR-0005327-2008
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 09, 2016
Appellant, Charles Vasquez, Jr., appeals from the September 16, 2015
order dismissing, as untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.
Contemporaneously with this appeal, counsel has requested leave to
withdraw in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en
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*
Retired Senior Judge assigned to the Superior Court.
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banc), and their progeny. After careful review, we affirm and grant
counsel’s petition to withdraw.1
We summarize the relevant procedural history of this case as follows.
On March 10, 2010, Appellant entered into a negotiated guilty plea
agreement with the Commonwealth and pled guilty to two counts of
possession with intent to deliver, two counts of possession of drug
paraphernalia, one count of fleeing from a police officer, five counts of
receiving stolen property, one count of possession of a firearm prohibited,
one count of theft by unlawful taking, and one count of operating a chop
shop.2 The trial court imposed an aggregate sentence of 5 to 10 years’
imprisonment to cover all charges. Relevant to this appeal, two of the
sentences were mandatory minimum sentences imposed pursuant to 42
Pa.C.S.A. § 9712.1. Appellant did not file a post-sentence motion, nor a
direct appeal with this Court.
On May 5, 2014, Appellant filed the instant pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended petition on July 15,
2014. The Commonwealth filed its answer on August 14, 2014. On July 8,
2015, the PCRA court entered an order notifying Appellant of its intention to
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1
The Commonwealth has elected not to file a brief in this matter.
2
35 P.S. §§ 780-113(a)(30), 780-113(a)(32), 75 Pa.C.S.A. § 3733(a), 18
Pa.C.S.A. §§ 3925(a), 6105(a)(1), 3921(a), and 18 P.S. § 1.3(1),
respectively.
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dismiss his PCRA petition without a hearing pursuant to Pennsylvania Rule of
Criminal Procedure 907. Appellant did not file a response. The PCRA court
entered an order dismissing Appellant’s PCRA petition on September 16,
2015. On October 14, 2015, Appellant filed a timely notice of appeal. 3
On appeal, counsel raises the following issue on Appellant’s behalf.
Whether the [PCRA] court erred when it denied
[PCRA] relief on the basis that the PCRA petition was
filed untimely?
Turner/Finley Brief at 2.
Prior to considering Appellant’s issue, we must review PCRA counsel’s
request to withdraw from representation. Our Supreme Court has
articulated the requirements PCRA counsel must adhere to when requesting
to withdraw, which include the following.
1) A “no-merit” letter by PC[R]A counsel detailing
the nature and extent of his review;
2) The “no-merit” letter by PC[R]A counsel listing
each issue the petitioner wished to have reviewed;
3) The PC[R]A counsel’s “explanation”, in the “no-
merit” letter, of why the petitioner’s issues were
meritless[.]
Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,
supra at 215. “Counsel must also send to the petitioner: (1) a copy of the
“no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3)
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3
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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a statement advising petitioner of the right to proceed pro se or by new
counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007) (citation omitted).
[W]here counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.
Id. (citation omitted).
Instantly, we determine that PCRA counsel has complied with the
requirements of Turner/Finley. Specifically, PCRA counsel’s Turner/Finley
brief and petition to withdraw4 detail the nature and extent of PCRA
counsel’s review, address the untimeliness of Appellant’s PCRA petition, and
explain and conclude that the issue lacks merit. Additionally, PCRA counsel
served Appellant with a copy of the petition to withdraw and Turner/Finley
brief, advising Appellant that, if PCRA counsel was permitted to withdraw,
Appellant had the right to proceed pro se or with privately retained counsel.
Appellant has not filed any response. We proceed, therefore, to conduct an
independent merits review of Appellant’s issue.
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4
We note that counsel has included his petition to withdraw as a section of
his Turner/Finley brief, rather than filing a separate petition to withdraw.
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We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
As noted above, Appellant’s issue on appeal addresses the timeliness
of his instant PCRA petition, which implicates the jurisdiction of this Court
and the PCRA court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.
Super. 2014) (citation omitted). Pennsylvania law makes clear that when “a
PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition.” Commonwealth v. Seskey, 86 A.3d 237,
241 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 103 (Pa.
2014). The “period for filing a PCRA petition is not subject to the doctrine of
equitable tolling; instead, the time for filing a PCRA petition can be extended
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only if the PCRA permits it to be extended[.]” Commonwealth v. Ali, 86
A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation omitted),
cert. denied, Ali v. Pennsylvania, 135 S. Ct. 707 (2014). This is to “accord
finality to the collateral review process.” Commonwealth v. Watts, 23
A.3d 980, 983 (Pa. 2011) (citation omitted). “However, 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.A. § 9545(b)(1)(i), (ii), and (iii), are met.”
Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation
omitted). The PCRA provides, in relevant part, as follows.
§ 9545. Jurisdiction and proceedings
…
(b) Time for filing petition.—
(1) Any petition under this subchapter,
including a second or subsequent petition, shall
be filed within one year of the date the
judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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
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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.
(2) Any petition invoking an exception
provided in paragraph (1) shall be filed within
60 days of the date the claim could have been
presented.
…
42 Pa.C.S.A. § 9545(b).
In the instant case, Appellant was sentenced on March 4, 2010 and did
not file a direct appeal with this Court. Therefore, Appellant’s judgment of
sentence became final on April 5, 2010, when the 30-day period for filing a
notice of appeal with this Court expired.5 See 42 Pa.C.S.A. § 9545(b)(3)
(stating, “a judgment 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[]”); Pa.R.A.P. 903(c)(3) (stating, “[i]n a criminal case in which no
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5
We observe that the 30th day fell on Saturday, April 3, 2010. When
computing the 30-day filing period “[if] the last day of any such period shall
fall on Saturday or Sunday … such day shall be omitted from the
computation.” 1 Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to
file a timely notice of appeal was Monday, April 5, 2010.
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post-sentence motion has been filed, the notice of appeal shall be filed
within 30 days of the imposition of the judgment of sentence in open
court[]”). Appellant filed his petition on May 5, 2014, and therefore it is
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1) (stating, “[a]ny petition
under this subchapter, including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final[]”).
Instantly, Appellant’s PCRA petition asserts that Appellant’s mandatory
minimum sentences under Section 9712.1 are unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013) and therefore illegal.
Turner/Finley Brief at 2. However, as counsel acknowledges, judicial
opinions are not considered new facts for the purposes of Section
9545(b)(1)(ii). See Watts, supra at 987. Furthermore, counsel
acknowledges that Alleyne does not satisfy the new constitutional right
exception to the time-bar. See generally Commonwealth v. Miller, 102
A.3d 988, 994-995 (Pa. Super. 2014). In addition, Alleyne was decided on
June 17, 2013, and Appellant’s petition was filed on May 5, 2014, 322 days
later, in violation of the 60-day rule at Section 9545(b)(2). Therefore,
counsel is correct that Appellant’s PCRA petition was untimely filed and no
time-bar exception applied.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition as untimely. Accordingly, we affirm the
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PCRA court’s September 16, 2015 order and grant counsel’s petition to
withdraw.
Order affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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