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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUAN RODRIGUEZ :
:
Appellant : No. 1075 EDA 2016
Appeal from the PCRA Order March 10, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000374-1992
BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSOM, J.: FILED JANUARY 09, 2017
Juan Rodriguez appeals pro se from the order entered March 10, 2016,
dismissing as untimely his petition for relief filed pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In July 2006, following a jury trial, Appellant was sentenced to an
aggregate term of twelve to forty years’ incarceration for four counts of
Aggravated Assault, four counts of Simple Assault, four counts of Recklessly
Endangering Another Person, one count of Criminal Mischief, and one count
of Criminal Conspiracy.1
Appellant timely filed post sentence motions that the trial court denied
by operation of law. In December 1996, Appellant pro se filed a notice of
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1
Respectively, 18 Pa.C.S.A. § 2702, 18 Pa.C.S.A. § 2701, 18 Pa.C.S.A. §
2705, 18 Pa.C.S.A. § 3304(a)(2), 18 Pa.C.S.A. § 903.
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appeal, and counsel was appointed. In February 1999, this Court affirmed
Appellant’s judgment of sentence. Commonwealth v. Rodriguez, 737
A.2d 811 (Pa. Super. 1999) (unpublished memorandum). Appellant did not
petition to the Pennsylvania Supreme Court for review.
In January 2000, Appellant filed his first PCRA. However, Appellant
mistakenly mailed the petition to the Chester County District Attorney’s
Office. Nevertheless, in April 2001, counsel was appointed and filed an
amended PCRA petition. In October 2001, by agreement of the parties,
Appellant’s PCRA petition was granted in part and denied in part. Appellant
was resentenced to an aggregate term of nine to twenty years followed by a
consecutive ten years of probation. Appellant did not file an appeal with this
Court.2
In September 2002, Appellant filed a Petition for Habeas relief, which
the court properly treated as a second pro se PCRA petition. In February
2004, the PCRA court dismissed Appellant’s petition. In November 2005,
Appellant was paroled from his prison sentences. In August 2015, during
the course of Appellant’s parole, he incurred new charges.
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2
The granting of Appellant’s first PCRA petition did not reset the clock.
Appellant is still required to file a petition within one year after the judgment
of sentence becomes final or prove one of the timeliness exceptions. See
Commonwealth v. Dehart, 730 A.2d 991, 994 n.2 (Pa. Super. 1999)
(holding a successful first PCRA does not “reset the clock” for calculation of
the finality of the judgment of sentence purposes of the PCRA where the
relief granted in the first petition neither restored a petitioner’s direct appeal
rights nor disturbed his conviction, but rather, affected his sentence only).
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Appellant filed the instant petition in February of 2016, asserting that
his sentence is illegal. That same month, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a
hearing. In March 2016, the PCRA court dismissed Appellant’s petition.
This appeal followed. Appellant did not timely file a 1925(b)
statement. However, because the trial court accepted the untimely 1925(b)
statement and addressed the issues raised, we may as well. See
Commonwealth v. Brown, 145 A.3d 184 (Pa. Super. 2016) (“where the
trial court addresses the issues raised in an untimely Rule 1925(b)
statement, we need not remand but may address the issues on their
merits.”). Also, Appellant’s brief filed in this Court fails to include a
statement of question involved; however, based on our review of his
petition, it is evident that Appellant is challenging the legality of his
sentence.3
The standard of review regarding an order denying a petition under
the PCRA is whether the determination of the PCRA court is supported by the
evidence of the record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford the court’s factual
findings deference unless there is no support for them in the certified record.
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3
Although Appellant’s brief may not be inconformity with Pennsylvania Rules
of Appellate Procedure 2111, et seq., as we find the gist of Appellant’s
argument comprehensible, we decline to dismiss Appellant’s appeal.
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Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing
Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
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Appellant’s petition is untimely.4 Thus, Appellant was required to
plead and prove an exception to the PCRA timeliness requirements. He has
failed to do so.
Appellant challenges the legality of his sentence. Although illegal
sentencing issues cannot be waived, they still must be presented in a timely
PCRA petition. Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999)
(“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 exceptions
thereto.”).
Accordingly, the PCRA court lacked jurisdiction to entertain Appellant’s
claim and did not err in dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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4
Appellant’s petition is patently untimely. Appellant’s initial judgment of
sentence became final on March 10, 1999; thirty days after this Court
affirmed the judgment of sentence. See § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking review). Appellant’s current petition, filed February 8,
2016, is almost sixteen years too late.
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