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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PEDRO CARRASQUILLO,
Appellant No. 2121 EDA 2017
Appeal from the PCRA Order Entered June 1, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000452-2008
BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 23, 2018
Appellant, Pedro Carrasquillo, appeals pro se from the post-conviction
court’s June 1, 2017 order denying, as untimely, his petition filed under the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The facts underlying Appellant’s conviction are not necessary to our
disposition of his appeal. The PCRA court summarized the pertinent
procedural history of this case, as follows:
On January 30, 2009, [Appellant] pled guilty to involuntary
deviant [sic] sexual intercourse, robbery, burglary, and criminal
conspiracy. This court sentenced him to an aggregate term of 15
to 30 years[’] incarceration. [Appellant] did not pursue a direct
appeal, instead filing a … []PCRA[] petition on July 31, 2009. His
petition was formally dismissed on July 9, 2010[,] and this court
issued an opinion on December 15, 2010. On May 20, 2011, the
Superior Court dismissed his appeal for failure to file a brief.
Thereafter, [Appellant] has made several filings, most recently the
instant PCRA petition on August 19, 2016. This court issued a
notice of [its] intent to dismiss the petition pursuant to
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Pennsylvania Rule of Criminal Procedure 907 on May 1, 2017. The
petition was formally dismissed on June 1, 2017. [Appellant] filed
a notice of appeal to the Superior Court on June 1[9], 2017.
PCRA Court Opinion (PCO), 8/30/17, at 1.
It seems that Appellant attached to his notice of appeal a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, despite not
being ordered to file that statement by the PCRA court. On August 30, 2017,
the PCRA court issued an opinion addressing the issues presented in
Appellant’s Rule 1925(b) statement. Herein, Appellant presents three
questions for our review, which we reproduce verbatim:
A. The Court of Common Pleas, Criminal Division lacked
jurisdiction over the Appellant by sentencing him under the
Sixth Edition. The Six Edition were not in effect at the time of
his offense. The Fifth Edition was in full effect, Appellant’s
sentence is illegal, wrong guidelines and he is entitled to be
resentenced “ex post facto clauses art?
B. The court err in violation of the United States Constitution, the
Pennsylvania Constitution and their treaties made. Under the
due process and equal protection of the laws, state and federal
constitutions. The Appellant was sentenced to a multiple
offenses pursuant to the mandatory minimum scheme deemed
facially unconstitutional?
C. Was trial counsel ineffective for failing to guarantee Appellant
his constitutional right to an appeal?
Appellant’s Brief at 4 (unnecessary capitalization omitted).
This Court’s 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 record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations implicate
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our jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the following exceptions
set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(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
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 one of
these exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on June 19, 2011,
at the expiration of the thirty day time period for seeking review with the
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Pennsylvania Supreme Court after this Court dismissed his direct appeal due
to his failure to file a brief. See 42 Pa.C.S. § 9545(b)(3) (stating a judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 1113(a) (directing that “a
petition for allowance of appeal shall be filed with the Prothonotary of the
Supreme Court within 30 days of the entry of the order of the Superior Court
sought to be reviewed”). Accordingly, Appellant’s present PCRA petition, filed
in August of 2016, is patently untimely, and for this Court to have jurisdiction
to review the merits thereof, Appellant must prove that he meets one of the
exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
Instantly, Appellant does not argue the applicability of any of the above-
stated exceptions. Instead, the thrust of his arguments challenge the legality
of his sentence, and allege ineffective assistance of his trial counsel. Such
claims do not, in and of themselves, meet a PCRA timeliness exception. See
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (“It is well
settled that allegations of ineffective assistance of counsel will not overcome
the jurisdictional timeliness requirements of the PCRA.”) (citations omitted);
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims
challenging the legality of sentence are subject to review within the PCRA, but
must first satisfy the PCRA’s time limits).1
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1To the extent Appellant also raises cursory challenges to the discretionary
aspects of his sentence, such issues are not cognizable under the PCRA. See
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We also note that Appellant cannot satisfy the ‘new retroactive right’
exception of section 9545(b)(1)(iii) with his sentencing challenge premised on
Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts
that increase mandatory minimum sentences must be submitted to the jury”
and found beyond a reasonable doubt). Our Supreme Court has held that
Alleyne does not apply retroactively to collateral attacks on mandatory
minimum sentences. Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016).
Accordingly, we ascertain no error in the PCRA court’s conclusion that
Appellant’s petition is untimely and he fails to meet any exception under
section 9545(b). Therefore, the court properly dismissed Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/18
____________________________________________
Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”) (citations omitted); see also 42 Pa.C.S. § 9543(a)(2).
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