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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RAMON L. MERCADO-ROSARIO :
:
Appellant : No. 1940 MDA 2018
Appeal from the Order Entered October 26, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002170-2015
BEFORE: BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.
MEMORANDUM BY BOWES, J.: FILED APRIL 17, 2019
Ramon L. Mercado-Rosario appeals pro se from the order dismissing his
third petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). We affirm.
Appellant shot Heidi Mercado-Rosario in the head with a revolver, and
was thereafter charged with numerous offenses arising from that incident.
Appellant ultimately entered a negotiated plea agreement whereby he pled
guilty to possession of a firearm prohibited and recklessly endangering
another person, and the Commonwealth nol prossed the remaining charges
against him. Consistent with the plea agreement, Appellant was sentenced
on June 29, 2016, to serve five to ten years incarceration for possession of a
firearm prohibited, followed by a consecutive term of one to two years
incarceration for recklessly endangering another person. Appellant did not
appeal his judgment of sentence.
____________________________________
* Former Justice specially assigned to the Superior Court.
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On November 8, 2016, Appellant filed a pro se PCRA petition challenging
his plea as involuntarily entered, and raising claims of illegality of sentence,
and ineffectiveness of plea counsel. The PCRA court appointed counsel. A
few weeks later, Appellant withdrew his petition with the advice and presence
of PCRA counsel, who advised the court that Appellant had received the
bargained-for sentence.
On August 31, 2017, Appellant filed a second pro se PCRA petition,
claiming that he should have received two and one-half to five years of
incarceration rather than five to ten years of incarceration, that his sentences
should have merged, and that he received an unconstitutional mandatory
minimum sentence. The PCRA court issued notice of its intention to dismiss
the petition without a hearing based on the untimeliness of Appellant’s petition
and his failure to plead or prove an exception to the PCRA’s timeliness
requirements. See 42 Pa.C.S. § 9545(b)(1) Appellant filed a response
thereto claiming that a challenge to the legality of sentence cannot be waived.
The PCRA court entered an order on October 19, 2017, explaining that
challenges to the legality of sentence in collateral proceedings are subject to
the PCRA’s timeliness requirements, and dismissing the second petition as
untimely filed. Appellant did not appeal the dismissal order.
On September 25, 2018, Appellant filed the instant pro se PCRA petition,
his third, raising the same issues that he raised in his second petition. The
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss the petition
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without a hearing, and on October 26, 2018, entered an order dismissing the
petition. Appellant filed a timely notice of appeal and a court-ordered P.A.R.P.
1925(b) concise statement of matters complained of on appeal.
Appellant raises the following issues for our review:
I. Ineffective assistance of counsel. In that my lawyer erred
in coarsing [sic] me to take a guilty plea of an illegal
sentence of a 6-12 years.
II. Illegal sentence in that the judge sentence me to a 5-10
years. The judge gave me a mandatory minimum sentence
of 5-10 years, for person not to possess a firearm. . . .
[Appellant] should have gotten a 2½ -5 years for person not
to possess a firearm.
III. [A]ll prior counsel, including PCRA counsel[,] have rendered
layered ineffectiveness & in fact have rendered defected
[sic] assistance pursuant to the layered ineffective
assistance counsel doctrine, in violation of [Appellant’s]
Pennsylvania an [U]nited [S]tates constitutional rights to a
new sentence
Appellant’s brief at 4 (unnecessary capitalization omitted, issues divided for
clarity and ease of disposition).
Preliminarily, we note that appellate briefs and reproduced records must
materially conform to the requirements of the Pennsylvania Rules of Appellate
Procedure. See Pa.R.A.P. 2101. This Court may quash or dismiss an appeal
if the appellant fails to conform to the requirements set forth in our appellate
rules. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.Super. 2003).
Although this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant. Lyons,
supra at 252. To the contrary, any person choosing to represent himself in
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a legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing. Commonwealth v. Rivera,
685 A.2d 1011 (Pa.Super. 1996).
The Pennsylvania Rules of Appellate Procedure provide guidelines
regarding the required content of an appellate brief. See Pa.R.A.P. 2111.
Additionally, Rules 2114 through 2119 specify in greater detail the material to
be included in briefs on appeal. See Pa.R.A.P. 2114-2119. Instantly,
Appellant’s brief falls short of these standards. It does not include a statement
of jurisdiction or a statement of the scope of review and the standard of
review. See Pa.R.A.P. 2111(a)(1), (3), Pa.R.A.P. 2114. Appellant failed to
include the order or other determination in question. See Pa.R.A.P.
2111(a)(2), Pa.R.A.P. 2115. Appellant did not include a statement of the case,
or a summary of the argument. See Pa.R.A.P. 2111(a)(5)-(6); Pa.R.A.P.
2117(a); Pa.R.A.P. 2118. Appellant’s brief makes no reference to the certified
record. See Pa.R.A.P. 2119(b) and (c). Appellant neither discusses his issues
nor explains why they entitle him to relief. See Pa.R.A.P. 2119(a) (stating
that the parties’ briefs must include a discussion of each question raised on
appeal and a “citation of authorities as are deemed pertinent”). Instead, he
simply provides what appears to be non-relevant excerpts from the dissenting
opinion filed in three cases.
While we could find waiver on the basis of these substantial defects, we
need not do so because the PCRA court properly determined that it lacked
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jurisdiction to consider the instant petition. Under the PCRA, any petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A
judgment of sentence 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 time for seeking
the review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional in nature, and a court may not address the merits of the issues
raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,
994 A.2d 1091, 1093 (Pa. 2010).
Appellant’s judgment of sentence became final on July 29, 2016, when
the period of time to file a direct appeal expired. See 42 Pa.C.S.
§ 9545(b)(3); see also Commonwealth v. Rojas, 874 A.2d 638, 643
(Pa.Super. 2005). Appellant had until July 29, 2017, to file the instant PCRA
petition, but did not do so until September 25, 2018. Thus, Appellant’s
petition is facially untimely under the PCRA. Nevertheless, Pennsylvania
courts may consider an untimely PCRA petition if the appellant can explicitly
plead and prove one of three exceptions set forth under 42 Pa.C.S.
§ 9545(b)(1).
Here, Appellant failed to plead or prove the applicability of any exception
to the PCRA timeliness requirements. See 42 Pa.C.S. § 9545(b)(1); see also
Albrecht, supra at 1094. While illegal sentencing claims are cognizable
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under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(vii), a PCRA court is without
jurisdiction to address such claims unless the petition was timely filed or the
petitioner is able to satisfy one of the timeliness exceptions. See
Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa.Super. 2011) (holding
that “when the one-year filing deadline of § 9545 has expired, and no
statutory exception has been pled or proven, a PCRA court cannot invoke
inherent jurisdiction to correct orders, judgments and decrees, even if the
error is patent and obvious”). As Appellant failed to plead or offer to prove
any of the timeliness exceptions, the PCRA court correctly determined that it
lacked jurisdiction to consider Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2019
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