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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWIN JAVIER GUZMAN, JR.,
Appellant No. 267 WDA 2016
Appeal from the PCRA Order January 6, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000461-2010
BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 08, 2017
Appellant, Edwin Javier Guzman, Jr., appeals from the order denying
his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the following relevant facts and procedural history from our
independent review of the certified record. On July 12, 2010, Appellant
entered a counseled guilty plea to attempted murder and aggravated
assault. The charges related to Appellant's December 12, 2009 shooting of
the victim, resulting in serious injuries, including paralysis. (See N.T.
Sentencing, 8/24/10, at 7-8). On August 24, 2010, the trial court sentenced
Appellant to a standard range sentence of not less than ten nor more than
* Retired Senior Judge assigned to the Superior Court.
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twenty years' imprisonment on the attempted murder charge. (See
Sentencing Order, 8/24/10, at 1; N.T. Sentencing, at 21-22). The
aggravated assault conviction merged for sentencing purposes. This Court
affirmed Appellant's judgment of sentence on June 1, 2011, and our
Supreme Court denied review on November 1, 2011. (See Commonwealth
v. Guzman, 31 A.3d 732 (Pa. Super. 2011), appeal denied, 32 A.3d 1275
(Pa. 2011)).
On September 14, 2015, Appellant filed a pro se "Petition to Correct
Illegal Sentence Pursuant to the Court's Inherent Jurisdiction to Correct,"
which the court properly treated as a first PCRA petition. The court
appointed PCRA counsel, who filed a supplemental petition on October 20,
2015. On December 10, 2015, the PCRA court issued a notice of its intent to
dismiss Appellant's petition without a hearing. See Pa.R.Crim.P. 907(1).
Appellant did not respond, and the court dismissed the petition as untimely
on January 6, 2016. On February 2, 2016, Appellant filed a timely pro se
notice of appeal although the docket and the record indicated that he was
still represented by PCRA counsel. On August 23, 2016, this Court
remanded this matter to the PCRA court for it to conduct a Grazier' hearing
to determine if Appellant had knowingly, intelligently, and voluntarily waived
his right to counsel. After conducting the hearing, the court found that
1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant did not intend to waive his right to counsel and assigned new
PCRA counsel to represent him in this appeal. On October 6, 2016, counsel
filed an amended statement of errors complained of on appeal pursuant to
the PCRA court's order. See Pa.R.A.P. 1925(b).2
However, counsel failed to file either an advocate's brief or
Turner/Finley3 no -merit letter. Therefore, this Court again remanded to
the PCRA court for it to conduct a hearing to determine if then -appointed
counsel had abandoned Appellant, and to take whatever steps it deemed
necessary or appropriate to ensure that Appellant has the representation of
counsel for purposes of litigating a first PCRA petition through the entire
appellate process. On January 11, 2017, the PCRA court appointed current
counsel. After receiving an extension of time within which to do so, counsel
filed a brief on Appellant's behalf, and this case is now ripe for our review.
Appellant raises one issue on appeal: "Did the [PCRA] court commit
[an] abuse of discretion and reversible error by dismissing [Appellant's]
PCRA as untimely, when [Appellant] properly raised an exception, that being
2 On October 10, 2016, the PCRA court filed an amended Rule 1925(a)
opinion in which it relied on the reasons stated in its December 10, 2015
notice to dismiss pursuant to Pennsylvania Rule of Criminal Procedure
907(1). See Pa.R.A.P. 1925(a).
3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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[his] sentence was illegal as it was [a] violation of Alleyne,[4] which
prohibited imposition of mandatory minimum sentences[?]" (Appellant's
Brief, at 1) (unnecessary capitalization omitted).
Before we are able to consider the merits of Appellant's claim on
appeal, we must determine whether the PCRA court properly determined
that his petition was untimely, and that therefore it did not have jurisdiction
to decide its merits.
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. 2012), appeal
denied, 64 A.3d 631 (Pa. 2013) (citations omitted).
Here, the PCRA court found Appellant's petition was untimely and that
he failed to plead and prove any exception to the PCRA time -bar. (See
Order, 12/10/15). We agree.
It is well -settled that:
4 Alleyne v. United States, 133 S.Ct. 2151 (2013).
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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 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).
In the case sub judice, Appellant's judgment of sentence became final
on January 30, 2012, at the expiration of the time for him to seek review in
the United States Supreme Court. See U.S. Sup. Ct. R. 13; Pa.R.A.P.
903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that
date to file a petition for collateral relief unless he pleaded and proved that a
timing exception applied. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) Hence,
Appellant's current petition, filed on September 14, 2015, is untimely on its
face and we only will review its merits if he pleads and proves one of the
statutory exceptions to the time -bar.
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-
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recognized constitutional right. See id. When a petition is filed outside the
one-year time limit, petitioners must plead and 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 [sixty] 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 -
discovered constitutional right exception. (See Appellant's Brief, at 3); see
also 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically, he alleges that the United
States Supreme Court's reasoning in Alleyne, supra, should be applied
retroactively to his case.5 (See Appellant's Brief, at 3-5). However, this
claim is unavailing because Appellant has failed to plead and prove the
applicability of Section 9545(b)(1)(iii).
It is well -settled that:
5 The Supreme Court decided Alleyne on June 17, 2013. Appellant filed the
instant petition over two years later, on September 14, 2015, thus violating
the sixty-day requirement of 42 Pa.C.S.A. § 9545(b)(2). See 42 Pa.C.S.A. §
9545(b)(2).
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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)
(citation omitted) (emphasis in original).
In Alleyne, the Supreme Court of the United States held that "facts
that increase mandatory minimum sentences must be submitted to the jury"
and must be found beyond a reasonable doubt. Alleyne, supra at 2163.
"The Alleyne decision, therefore, renders those Pennsylvania mandatory
minimum sentencing statutes that do not pertain to prior convictions
constitutionally infirm insofar as they permit a judge to automatically
increase a defendant's sentence based on a preponderance of the evidence
standard." Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.
2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014) (footnotes
omitted).
As a preliminary matter, we observe that there is nothing in the record
to suggest that Appellant is serving a mandatory sentence. Appellant
pleaded guilty to attempted murder and aggravated assault. (See N.T.
Guilty Plea, 7/12/10, at 10). Although the aggravated assault charge carried
a mandatory minimum term of not less than five, nor more than ten years'
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incarceration, the court expressly declined to sentence Appellant pursuant to
those terms. (See N.T. Sentencing, at 20). Instead, the court sentenced
Appellant to a term of not less than ten nor more than twenty years'
incarceration on the attempted murder conviction, and merged the
aggravated assault charge. (See id. at 20-21). Therefore, the holding of
Alleyne does not apply to Appellant's case.
Moreover, in considering whether Alleyne provides an exception to
the PCRA time -bar, our Pennsylvania Supreme Court expressly held,
"Alleyne does not apply retroactively to cases pending on collateral
review[.]" Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.
2016); see also Commonwealth v. Whitehawk, 146 A.3d 266, 271 (Pa.
Super. 2016).
Therefore, even if he were serving a mandatory sentence, Appellant's
reliance on Alleyne would be fatal to his claim. See Washington, supra at
820; Whitehawk, supra at 271. Hence, because Appellant failed to plead
and prove the applicability of a PCRA timeliness exception, we conclude that
the PCRA court properly dismissed his untimely petition without a hearing on
the basis that it lacked jurisdiction. See Johnston, supra at 1126.
Order affirmed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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