J-S64018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ADALBERTO VARGAS
Appellant No. 386 EDA 2016
Appeal from the Order January 13, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000825-2011
CP-15-CR-0000826-2011
CP-15-CR-0003090-2011
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2016
Appellant, Adalberto Vargas, appeals pro se from the order dismissing
his “Petition To Correct Illegal Sentence.” We affirm.
On April 14, 2011, Appellant entered a guilty plea to three counts of
burglary and three counts of conspiracy. At sentencing on June 1, 2011, the
Commonwealth stated:
Your Honor, I’m handing up a colloquy that was first
executed on April 14, 2011 before Judge Nagle. There was
an agreement in place and the defendant’s guilty plea was
accepted but Judge Nagle rejected the guilty plea or the
sentence that was called for and asked for the parties to
continue to negotiate a higher sentence than what was
called for in the guilty plea agreement.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S64018-16
We discussed that sentence. I believe there’s an
agreement for a 7 to 14 year term of incarceration when
you add up the numbers between all the parties. We have
consulted Judge Nagle and he is in agreement with that,
and due to his senior status we’re asking Your Honor to
help us in sentencing the defendant today.
At the time of the first colloquy, Judge Nagle did
indicate to the defendant that if he wanted to withdraw his
guilty plea at any time he could. I would ask that you
inquire into that today as well as proceed to sentence.
N.T., 6/1/11, at 2.
The sentencing court then conducted a colloquy on the record, and the
following exchange occurred:
THE COURT: Okay. As I said, you were before Judge
Nagle, and Judge Nagle indicated that while he would
accept the guilty plea, he did not accept the sentence, and
he told your attorney and the Commonwealth attorney to
go back and discuss a new sentence. And I’m told they
have done that and that Judge Nagle is in agreement that
it is appropriate, so that is the purpose of today’s hearing
to have me impose the sentence and I’m doing that
because Judge Nagle is not available. And I understand
that you are agreeable that I can impose the sentence,
and I assume you are agreeable to the sentence.
So I’m going to ask a few questions. First, you have
the right to say I don’t want to plead guilty anymore. I
want to take my chances at trial. And if that’s your
decision today, that’s fine. Do you wish to stand by the
plea agreement and to continue to plead guilty?
APPELLANT: Yes.
THE COURT: Okay. I take it from the date that you were
in front of Judge Nagle until today you and your attorney
had a chance to sit down and talk to discuss what the new
sentence is going to be, to look at all of the facts of the
cases that you’re involved in, to look at the sentence you
might be looking at if there isn’t an agreement and that
you had an opportunity to discuss all of that with her
-2-
J-S64018-16
before deciding to accept the new agreement. Did you do
all of that?
APPELLANT: Yes, sir.
N.T., 6/1/11, at 2-4.
Thereafter, the court heard from Appellant, who was apologetic and
expressed remorse. Id. at 5. The court then sentenced Appellant to an
aggregate 7–14 years in prison.1 Appellant did not file a direct appeal.
Approximately two years later, on June 25, 2013, Appellant filed an
untimely pro se motion to withdraw his guilty plea and for appointment of
counsel. The trial court properly treated Appellant’s filing as a first petition
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and
appointed counsel. See Commonwealth v. [Thomas Duane] Taylor, 65
A.3d 462, 465–66 (Pa. Super. 2013) (PCRA is intended to be sole means of
achieving post-conviction relief, and a collateral petition that raises an issue
that the PCRA statute could remedy is to be considered a PCRA petition);
Pa.R.Crim.P. 904(C) (judge shall appoint counsel to represent defendant on
defendant’s first petition for post-conviction collateral relief).
____________________________________________
1
At Docket No. 3090-2010, Appellant was sentenced to 4-8 years for
burglary and a concurrent 3-6 years for conspiracy; at Docket No. 825-2011,
Appellant was sentenced to 3-6 years for burglary and a concurrent 2-4
years for conspiracy, to be served consecutive to the sentence at Docket No.
3090-2010; at Docket No. 826-2011, Appellant was sentenced to 2-4 years
for burglary and a concurrent 2-4 years for conspiracy, to be served
concurrent to the sentence at Docket No. 825-2011.
-3-
J-S64018-16
On October 9, 2013, Appellant’s counsel petitioned for leave to
withdraw, stating that Appellant’s petition was “untimely and there are no
valid issues of merit for a claim of ineffective assistance of counsel.” Petition
to Withdraw as PCRA Counsel, 10/9/13, at 1 (citing Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (“Once counsel for defendant
determines that issues raised under [PCRA] are ‘meritless,’ and court
concurs, counsel will be permitted to withdraw”)).
On October 15, 2013, the PCRA court filed a Criminal Rule 907 notice
of its intent to dismiss Appellant’s petition on the basis that the petition was
untimely and Appellant had failed to plead an exception to the PCRA’s time
bar. The PCRA court also advised that if Appellant did not respond, it would
enter an order permitting counsel to withdraw and would dismiss the PCRA
petition. Appellant did not file a response, and on January 23, 2014, the
PCRA court dismissed Appellant’s petition as untimely and granted counsel’s
petition to withdraw. Appellant did not appeal.
Almost a year later, on December 7, 2015, Appellant filed a pro se
petition to correct illegal sentence, which the court denied on January 13,
2016. Appellant filed a timely notice of appeal on February 2, 2016. In a
March 16, 2016, opinion, the court stated that Appellant’s claim is meritless
because “Mr. Vargas's plea was found to be knowing and voluntary, and the
sentence issued was within the range of the guidelines for the three
-4-
J-S64018-16
burglaries he was charged with and pled guilty to . . . .” Trial Court Opinion,
3/16/16, at 3.
Instantly, Appellant presents, verbatim, the following issues for our
review:
1. THE TRIAL COURT ERRED BY FAILURE TO CORRECT
ILLEGAL SENTENCE AND/OR CORRECT THE ERROR IN
THE SENTENCE OF A (4) YEARS TO (8) YEARS EXTRA
AFTER A NEGOTIATED PLEA AGREEMENT OF (7) YEARS
TO (14) YEARS, THEREFORE, PETITIONER CHALLENGE
TO THE VALIDITY OF SENTENCE IN QUESTION AS TO
THE LEGALITY OF SENTENCE AND IS NONWAIVABLE
MATTER UNDER SECTION 42 Pa.C.S. § 9541-9546:
2. WHETHER A MISCARRIAGE OF JUSTICE WOULD OCCUR
IF THE COMMONWEALTH FAILURE TO ADHERE TO THE
TERMS OF THE PLEA AGREEMENT OF (7) YEARS TO
(14) YEARS WHEREAS THE (4) YEARS TO (8) YEARS NO
LONGER BEING A FACTOR OF THE NEGOTIATED PLEASE
RAISE THE POSSIBILITY THAT THE PROCEEDING
RESULTED IN THE EXTRA (4) TO (8) YEARS BEING IN
ERROR OF THE SENTENCE WERE SO UNFAIR THAT A
MISCARRIAGE OF JUSTICE WOULD OCCUR IF EXTRA
SENTENCE IS ALLOWED TO STAND:
3. WAS COUNSEL INEFFECTIVE FOR NOT OBJECTING TO
THE COURT’S ERROR FOR FAILURE TO RECOGNIZE THE
ERROR IN (ERASING, EXPUNGING, OR REMOVING) THE
(4) TO (8) YEARS SENTENCE AFTER THE NEGOTIATED
PLEA AGREEMENT FOR ALL (3) BURGLARIES
CONSOLIDATED FOR A SENTENCE OF (7) TO (14)
YEARS ALL TOGETHER AND THE COURT FAILURE TO
COMPLY WITH THE PLEA AGREEMENT IN IMPOSING
THE EXTRA TERM OF (4) TO (8) YEARS
IMPRISONMENT:
4. PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO
PRESERVE AND ARGUE A CLAIM WITH ARGUABLE
MERIT SO UNDERMINED THE TRUTH DETERMINING
PROCESS THAT IN THE CIRCUMSTANCES OF THE
PARTICULAR CASE, NO RELIABLE ADJUDICATION OF
GUILT OR INNOCENCE COULD HAVE TAKEN PLACE
-5-
J-S64018-16
BECAUSE THE IMPOSITION OF SENTENCE IS GREATER
THAN THE LAWFUL AGREEMENT:
Appellant’s Brief at ii.
Preliminarily, we note that the court should have treated Appellant’s
petition to correct illegal sentence as his second petition filed pursuant to the
PCRA. “It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief. . . . Issues that are cognizable under the
PCRA must be raised in a timely PCRA petition[.]” [Thomas Duane]
Taylor, 65 A.3d at 465-466. In Taylor, this Court held that a defendant’s
motion to correct his illegal sentence was properly addressed as a PCRA
petition, stating broadly, “any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Id. at 466 (collecting
cases). A claim challenging the legality of a sentence is cognizable under
the PCRA, as are ineffectiveness claims regarding sentencing.
Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000); see also
Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001).
Accordingly, we review Appellant’s appeal as being from the denial of a PCRA
petition, his second.2
____________________________________________
2
We further note that PCRA petitioners are entitled to appointed counsel
only on the first petition; this right does not extend to subsequent petitions
like the one before us. See Pa.R.Crim.P. 904(A); Commonwealth v.
Kubis, 808 A.2d 196 (Pa. Super. 2002).
-6-
J-S64018-16
When reviewing the denial of PCRA relief, we examine whether the
court’s determination “is supported by the record and free of legal error.”
Commonwealth v. [Paul Gamboa] Taylor, 67 A.3d 1245, 1248 (Pa.
2013). In so doing, we are mindful of the PCRA’s timeliness requirement,
which is mandatory and jurisdictional. Id. The court cannot ignore a
petition’s untimeliness and reach the merits of the petition. Id. Thus, “[i]f a
PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006); see also Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
A petition for relief under the PCRA, including a second or subsequent
petition, must be filed within one year of the date the judgment is final
unless the petition alleges and the petitioner proves one of the three
exceptions to the time limitations for filing the petition set forth in Section
9545(b)(1) of the statute.3 See 42 Pa.C.S. § 9545(b). A PCRA petition
____________________________________________
3
The three exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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
(Footnote Continued Next Page)
-7-
J-S64018-16
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” Hernandez, 79 A.3d at
651-652; 42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the time
restrictions in the PCRA must be included in the petition, and may not be
raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007).
Here, Appellant’s judgment of sentence was imposed on June 1, 2011,
and he did not file a direct appeal. His judgment of sentence thus became
final on July 1, 2011, thirty days after the time period for filing a direct
appeal with this Court expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).
To be timely, Appellant had to file a PCRA petition within one year, by July 1,
2012, which he did not do. Appellant filed this petition on December 7,
2015, more than four years after his judgment of sentence became final.
Therefore, the underlying petition is patently untimely unless Appellant has
satisfied his burden of pleading and proving that one of the enumerated
exceptions in Section 9545(b)(1) applies.
_______________________
(Footnote Continued)
(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).
-8-
J-S64018-16
In his petition, Appellant neither acknowledged the PCRA’s time bar,
nor invoked any exception to it. See Petition to Correct Illegal Sentence,
12/7/15, at 1-3. Within his brief, Appellant conflates his arguments
regarding his plea, the legality of his sentence, and ineffective assistance of
counsel, all without reference to his delay in filing his latest petition seeking
post-conviction relief. See Appellant’s Brief at 1-6. Because Appellant's
petition is untimely on its face and Appellant has failed to plead and prove
any statutory exceptions to the PCRA’s jurisdictional time bar, we are
compelled to affirm the order denying Appellant post-conviction relief. See
Chester, 895 A.2d at 522; Hernandez, 79 A.3d at 651-52.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
-9-