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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOSE MARTINEZ, : No. 1183 EDA 2017
:
Appellant :
Appeal from the PCRA Order, March 20, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0410671-2001
BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2018
Jose Martinez appeals pro se from the March 20, 2017 order
dismissing his untimely serial petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we
affirm.1
This matter stems from appellant’s involvement in the February 20,
2000 shooting death of Angel L. Fuentes in Philadelphia. The PCRA court
summarized the relevant procedural history of this case as follows:
On January 17, 2002, following a jury trial,
before the Honorable Jane Cutler Greenspan,
[appellant] was convicted of murder and possession
of an instrument of crime (“PIC”).[2] On the same
day, Judge Greenspan imposed a judgment of
1 The Commonwealth has not filed a brief in this matter.
2 18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
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sentence of life imprisonment without parole for the
murder conviction, to run concurrently with a term of
one to two years for the PIC conviction. [Appellant]
filed a direct appeal and the Pennsylvania Superior
Court affirmed the trial court’s judgment of sentence
on May 23, 2003. [See Commonwealth v.
Martinez, 829 A.2d 361 (Pa.Super. 2003)
(unpublished memorandum), appeal denied, 837
A.2d 1178 (Pa. 2003).] The Pennsylvania Supreme
Court denied allocatur on November 13, 2003.
[Id.]
[Appellant] filed his first pro se petition for
collateral relief pursuant to the [PCRA] on May 26,
2004. Counsel, [Lee Mandell, Esquire,] was
appointed and subsequently filed an amended
petition. On January 14, 2005, the [PCRA] court
dismissed [appellant’s] PCRA petition. [Appellant]
filed an appeal and Pennsylvania Superior Court
affirmed the PCRA court’s decision on December 20,
2005. [See Commonwealth v. Martinez, 894
A.2d 820 (Pa.Super. 2005) (unpublished
memorandum), appeal denied, 903 A.2d 537 (Pa.
2006).] On July 25, 2006, the Pennsylvania
Supreme Court denied allocatur. [Id.] [Appellant]
filed a second PCRA petition on November 17, 2007,
which was dismissed by the trial court on April 16,
2008. No appeal followed.
PCRA court opinion, 6/19/17 at 1-2 (footnotes omitted).
Appellant filed a third pro se PCRA petition on August 13, 2015. On
December 22, 2016, appellant filed another petition, which was styled as a
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writ of habeas corpus.3 On January 31, 2017, the PCRA court provided
appellant with notice of its intention to dismiss his petition without a
hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file a response
to the PCRA court’s Rule 907 notice. Thereafter, on March 20, 2017, the
PCRA court dismissed appellant’s petition as untimely. Appellant filed a
timely pro se notice of appeal on March 29, 2017. The PCRA court did not
order appellant to file a concise statement of errors complained of on appeal,
in accordance with Pa.R.A.P. 1925(b). On June 19, 2017, the PCRA court
filed an opinion in support of its March 20, 2017 order.
Appellant raises the following issues for our review:
1. Whether the [PCRA] court erred when it failed
to grant relief as untimely?
2. Whether [appellant’s] alleged mental
incompetence during which the statutory
period for filing a [PCRA] petition expired may
trigger the “after-discovered” evidence
exception [to] the [PCRA] time-bar[]?
Appellant’s brief at 3 (citation and capitalization omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
3 We note that the PCRA explicitly states that an action under the PCRA is
the “sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies . . . including habeas corpus.”
42 Pa.C.S.A. § 9542. Plainly stated, “[u]nless the PCRA could not provide
for a potential remedy, the PCRA statute subsumes the writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super.
2013) (citations omitted).
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supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).
When the PCRA court denies a petition without an evidentiary hearing,
as is the case here, we “examine each issue raised in the PCRA petition in
light of the record certified before it in order to determine if the PCRA court
erred in its determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an evidentiary
hearing.” Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.
2004). There is no absolute right to an evidentiary hearing.
Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super. 2006) (citation
omitted). “It is within the PCRA court’s discretion to decline to hold a
hearing if the petitioner’s claim is patently frivolous and has no support
either in the record or other evidence.” Commonwealth v. Wah, 42 A.3d
335, 338 (Pa.Super. 2012) (citations omitted). Lastly, we note that,
“[a]lthough this Court is willing to liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon the
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appellant[.]” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.
2005) (citation omitted).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA
court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)
(citation omitted). All PCRA petitions, including second and subsequent
petitions, must be filed within one year of when a defendant’s judgment of
sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of the time for seeking the review.” 42 Pa.C.S.A.
§ 9545(b)(3). If a PCRA petition is untimely, a court lacks jurisdiction over
the petition. Commonwealth v. Callahan, 101 A.3d 118, 120-121
(Pa.Super. 2014).
Here, appellant’s judgment of sentence became final on February 13,
2004, 90 days after our supreme court denied allocator and the time for
filing a petition for writ of certiorari with the United States Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, in order to comply with the
filing requirements of the PCRA, appellant was required to file his petition by
February 13, 2005. See 42 Pa.C.S.A. § 9545(b)(1). Appellant’s petition,
filed August 13, 2015, is more than 10 years past the deadline and is
patently untimely. As a result, the PCRA court lacked jurisdiction to review
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appellant’s petition, unless appellant alleged and proved one of the statutory
exceptions to the time-bar, as set forth in Section § 9545(b)(1).
The three narrow exceptions to the one-year time bar are as follows:
(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.A. § 9545(b)(1)(i-iii); Commonwealth v. Brandon, 51 A.3d
231, 233-234 (Pa.Super. 2012). The appellant bears the burden of pleading
and proving the applicability of one of these exceptions. Commonwealth
v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citations omitted). “In
addition, a petition invoking any of the timeliness exceptions must be filed
within 60 days of the date the claim first could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
As best we can discern from his serial petition, the crux of appellant’s
argument is that the PCRA court erred in denying his petition as untimely
because of the newly recognized constitutional rights announced in Alleyne
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v. United States, 570 U.S. 99 (2013), and the Pennsylvania Supreme
Court’s subsequent decision in Commonwealth v. Hopkins, 117 A.3d 247
(Pa. 2015).4 (Pro se PCRA petition, 8/13/15 at 1-5.) This claim is
meritless.
Appellant’s reliance on Alleyne and Hopkins is of no avail because
the constitutional rights examined in those cases have not been held to be
retroactive by the Pennsylvania or United States Supreme Court. On the
contrary, the courts in this Commonwealth have expressly rejected the
notion that Alleyne applies retroactively to cases on collateral review. See
Commonwealth v. Washington, 142 A.3d 810, 814-815 (Pa. 2016)
(holding that the Alleyne decision does not apply retroactively to collateral
attacks upon mandatory minimum sentences advanced in PCRA
proceedings); Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super.
2015) (stating that, “while this Court has held that Alleyne applies
retroactively on direct appeal, we have declined to construe that decision as
applying retroactively to cases during PCRA review”). Because Alleyne is
not retroactive to cases pending on collateral review, the derivative cases
4 In Alleyne, the United States Supreme Court held that the Sixth
Amendment requires that “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.” Alleyne, 570 U.S. at 103 (citation omitted).
Thereafter, in Hopkins, a panel of this court held that 18 Pa.C.S.A. § 6317,
requiring the imposition of a mandatory minimum sentence if certain drug
crimes occur within 1,000 feet of a school, is unconstitutional under
Alleyne. Hopkins, 117 A.3d at 262.
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applying Alleyne also are not retroactive. See, e.g., Commonwealth v.
Whitehawk, 146 A.3d 266, 271 (Pa.Super. 2016) (holding that, Hopkins
did not announce a new rule for purposes of retroactive application to cases
on collateral review but merely applied Alleyne to a particular mandatory
minimum statute). Therefore, appellant fails to satisfy the newly-recognized
constitutional right exception the PCRA time-bar. See 42 Pa.C.S.A.
§9545(b)(1)(iii).
In his pro se brief, appellant all but abandons his Alleyne argument
and cites Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004),5 in support of
his contention that his mental incompetence during the filing of his pro se
petitions should qualify as a “newly-discovered fact” under
Section 9545(b)(1)(ii). (See appellant’s brief at 6-9.) Because appellant
has advanced this issue for the first time on appeal, we find it waived and
decline to address the merits. See Commonwealth v. Rainey, 928 A.2d
215, 226 (Pa. 2007) (concluding that issues not raised in a PCRA petition are
waived and cannot be considered for the first time on appeal); see also
42 Pa.C.S.A. § 9544(b) (stating, “an issue is waived if the petitioner could
5 In Cruz, our Supreme Court held that a petitioner who was suffering from
a brain injury caused by a self-inflicted gunshot wound at the time of his
nolo contendere plea was entitled to the opportunity to attempt to prove
that he was incompetent during the one-year period for seeking relief under
the PCRA. Cruz, 852 A.2d at 296-297. The Cruz court reasoned that the
petitioner’s mental incompetence qualified under the “after-discovered
evidence” exception to the PCRA time-bar under Section 9545(b)(1)(ii),
because it prevented him from discovering factual bases for his collateral
claims. Id.
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have raised it but failed to do so before trial, at trial, during unitary review,
on appeal or in a prior state postconviction proceeding.”); Pa.R.A.P. 302(a)
(stating, “[i]ssues not raised in the lower court are waived and cannot be
raised for the first time on appeal”).
Based on the foregoing, we discern no error on the part of the PCRA
court in dismissing appellant’s untimely petition without conducting an
evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/18
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