J-S64028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
FERDINAND AGUIRRE
Appellant No. 527 EDA 2016
Appeal from the PCRA Order February 5, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0509651-2003
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2016
Appellant, Ferdinand Aguirre, appeals from the order dismissing his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541–9546. The PCRA court found the petition untimely and
therefore not within its jurisdiction. We affirm.
On August 27, 2004, a jury convicted Appellant of third-degree
murder, aggravated assault, and carrying a firearm without a license. On
October 20, 2004, the trial court sentenced him to consecutive terms of
imprisonment of 20-40 years for third-degree murder, 10-20 years for
aggravated assault, and 3½-7 years for carrying a firearm without a license.
Appellant filed a timely appeal, and this Court affirmed his judgment of
sentence on September 30, 2005. Commonwealth v. Aguirre, No. 2921
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*
Former Justice specially assigned to the Superior Court.
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EDA 2004 (Pa. Super. Sept. 30, 2005) (unpublished memorandum).
Appellant did not file a petition for allowance of appeal with the Supreme
Court of Pennsylvania.
Appellant filed his first PCRA petition in 2006. The PCRA court denied
the petition, and this Court affirmed the order denying relief on April 17,
2009. Commonwealth v. Aguirre, No. 647 EDA 2008 (Pa. Super. Apr. 17,
2009). The Supreme Court of Pennsylvania denied Appellant’s petition for
allowance of appeal. Commonwealth v. Aguirre, 983 A.2d 725 (Pa. 2009)
(table).
Appellant filed the instant PCRA petition, his second, on June 1, 2012.
On January 20, 2015, he filed a pro se amended petition 1 in which he
alleged that his sentence was illegal under Alleyne v. United States, 133
S.Ct. 2151 (2013) (any fact that by law increases a mandatory minimum
sentence must be treated as an element of the offense and found by a jury
beyond a reasonable doubt). On May 5, 2015, counsel entered an
appearance and filed a motion for leave to amend the petition. The PCRA
court granted the motion, and counsel filed an amended petition on August
1, 2015, arguing that Appellant was entitled to retroactive application of
Alleyne.
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1
The record is silent as to why no action was taken on the petition between
June 1, 2012 and the filing of Appellant’s amended petition in January 2015.
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On December 29, 2015, the PCRA court issued a Criminal Rule 907
notice of intent to dismiss Appellant’s petition on the basis that it was
untimely and Appellant had failed to satisfy any exception to the PCRA’s time
bar. By an order entered February 5, 2016, the PCRA court dismissed
Appellant’s petition as untimely because he failed to establish eligibility for
the “newly-recognized constitutional right” exception to the PCRA’s time bar.
PCRA Op., 2/15/16, at 3-4; see 42 Pa. C.S. § 9545(b)(1)(iii). This appeal
followed.
In this appeal, Appellant raises the following issue, as stated:
Did the PCRA Court err and violate Appellant[’s]
Sixth, Eighth and Fourteenth [Amendment] rights
under the U.S. Constitution by finding that his PCRA
petition asserting an Alleyne claim/Petition was
untimely filed?
Appellant’s Brief at 4.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is “to determine whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
The PCRA court's findings will not be disturbed unless there is no support for
the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d
185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks
omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
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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) of the statute. See 42 Pa.C.S. § 9545(b).2
Here, Appellant’s judgment of sentence became final on October 31,
2005, when the thirty-day time period for filing an allocatur petition with the
Supreme Court of Pennsylvania expired. See 42 Pa.C.S. § 9545(b)(3). As
Appellant filed the instant PCRA petition more than six years after his
judgment of sentence became final, it is patently untimely unless Appellant
has satisfied his burden of pleading and proving that one of the three
enumerated exceptions applies.
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2
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
(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).
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In the 2015 amendments to his instant petition, Appellant attempted
to invoke the newly-recognized constitutional right exception enumerated in
42 Pa.C.S. § 9545(b)(1)(iii), based on the U.S. Supreme Court’s decision in
Alleyne. Any petition invoking an exception to the PCRA’s time bar “shall
be filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S. § 9545(b)(2). Alleyne was decided on June 17, 2013. As the PCRA
court noted, Appellant did not file his pro se amended petition citing Alleyne
until January 20, 2015, approximately one and one-half years later. PCRA
Court Opinion, 2/5/16, at 3. Thus, the PCRA court correctly found that
Appellant’s petition was untimely, and that the court therefore lacked
jurisdiction to consider its merits. See id.; Commonwealth v. Leggett, 16
A.3d 1144, 1146-47 (Pa. Super. 2011) (petitioner must invoke newly-
recognized constitutional right exception within sixty days of the date of the
underlying judicial decision that established the right).
Appellant argues that by granting him leave to amend his petition in
May 2015, the PCRA court relieved him of his obligation to raise a claim
based on Alleyne within 60 days of the Alleyne decision. Appellant’s Brief
at 12. Appellant cites no statement by the PCRA court and no other
authority to support this interpretation of the PCRA court’s order. Because
the time limitations in the PCRA are jurisdictional, a PCRA court has no
ability to extend those time deadlines, Commonwealth v. Fahy, 737 A.2d
214, 222 (Pa. 1999), and there is no evidence that the PCRA court had any
intent to try to extend them here. In granting leave to amend once counsel
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was appointed — a fairly common practice in the PCRA context — the court
said nothing about excusing the untimeliness of any claim or restarting the
PCRA’s jurisdictional time bar clock. At most, the court afforded counsel
leave to amend the PCRA petition to add a new claim if one were timely and
viable. The court’s order did not prejudge those issues.3
Appellant’s claim also was subject to dismissal for a second reason:
he could not satisfy the newly-recognized constitutional right exception to
the time bar, which applies only when the court that recognized the new
right has held that the right applies retroactively. See PCRA Court Opinion,
2/5/16, at 3-4; 42 Pa.C.S. § 9545(b)(1)(iii); Commonwealth v. Abdul-
Salaam, 812 A.2d 497, 501-02 (Pa. 2002). The U.S. Supreme Court has
not held that Alleyne applies retroactively to cases on collateral review.
Further, the Pennsylvania Supreme Court has expressly ruled that Alleyne
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3
Relying on Commonwealth v. Williams, 828 A.2d 981, 989 (Pa. 2003),
Appellant apparently contends that the timeliness of the May 5, 2015
amendment should be assessed by having it relate back to the dates of the
earlier petitions Appellant was amending. But, as discussed in the text, the
January 20, 2015 amendment in which Appellant first sought to raise the
Alleyne issue was filed 1½ years too late, so that a relation of the May 5,
2015 amendment back to that date cannot cure Appellant’s timeliness
defect. Appellant’s initial July 1, 2012 petition was filed nearly a year before
Alleyne was decided, and it would make no sense to have the May 5, 2015
amendment relate back to that 2012 date for purposes of deciding whether a
petition based on a new constitutional right recognized under Alleyne was
valid for purposes of Section 9545(b)(1)(iii); as of 2012, no such new
constitutional right had yet been recognized. As the text notes, Appellant’s
2012 petition was otherwise untimely by almost six years. Appellant’s
relation back theory therefore cannot help his case.
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does not apply retroactively in the PCRA context. Commonwealth v.
Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold that Alleyne does
not apply retroactively to cases pending on collateral review . . . .”). There
is thus no authority for application of the newly-recognized constitutional
right exception to Appellant’s current PCRA petition.
Appellant argues that Alleyne is akin to Miller v. Alabama, 132 S.
Ct. 2455 (2012) (imposition of life sentences on juveniles without possibility
of parole), which was held in Montgomery v. Louisiana, 136 S.Ct. 718
(2016), to be retroactively applicable on collateral review. Appellant’s Brief
at 13-16. The PCRA exception for a newly-recognized constitutional right
nevertheless applies only if the right at issue “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)(iii) (emphasis
added). The short answer to Appellant’s argument is that, in contrast to
Miller, neither the Supreme Court of the United States nor the Supreme
Court of Pennsylvania has held that Alleyne applies retroactively, making
this requirement of Section 9545(b)(1)(iii) unmet. Even if Appellant can
posit some analogy to Miller that would support an argument for either of
those Courts to render a holding of retroactivity, the fact that neither Court
has done so puts an end to the timeliness inquiry in this Court.
Based on the foregoing, the PCRA court correctly concluded that it
lacked jurisdiction to consider Appellant’s untimely PCRA petition. We
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therefore affirm the PCRA court’s order denying Appellant post-conviction
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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Com. v. Aguirre, F.
Combined Opinion