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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MANUEL COLLAZO, :
:
Appellant. : No. 2437 EDA 2018
Appeal from the PCRA Order Entered, August 1, 2018,
in the Court of Common Pleas of Northampton County,
Criminal Division at No(s): CP-48-CR-0003539-2014.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 10, 2019
Manuel Collazo appeals from the order denying his first petition filed
pursuant to the Post Conviction Relief Act. We affirm.
The pertinent facts and procedural history are as follows: As his
unarmed victim was fleeing, Collazo shot the victim in the back. On March
27, 2015, Collazo tendered a negotiated guilty plea to aggravated assault and
unlawful possession of a firearm, and the Commonwealth withdrew other
charges, including a charge of attempted murder. Following written and oral
colloquies, the trial court sentenced Collazo, in accordance with his negotiated
plea, to an aggregate term of 8½ to 20 years of imprisonment.
Although Collazo failed to file a timely post-sentence motion, the trial
court granted his subsequent request to file the motion nunc pro tunc. In his
petition, Collazo claimed that the prior record score used to negotiate his
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* Former Justice specially assigned to the Superior Court.
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sentence was incorrect. In the alternative, Collazo sought to withdraw his
guilty plea. The trial court held a hearing on April 24, 2015, at which time
Collazo informed the court that he did not wish to withdraw his plea, but
requested a continuance regarding his post-sentence motion. Ultimately, the
trial court denied Collazo’s post-sentence motion on December 7, 2015.
Collazo filed a timely appeal to this Court. In this appeal, Collazo raised
four issues, including a challenge to the discretionary aspects of his sentence
and the voluntariness of his guilty plea. Finding no merit to any claim, we
affirmed his judgment of sentence on January 19, 2017. Commonwealth v.
Collazo, 160 A.3d 258 (Pa. Super. 2017) (unpublished memorandum).
Collazo did not seek further review.
Collazo filed a pro se PCRA petition on February 28, 2018. According to
the PCRA court:
[The PCRA court] appointed counsel, conducted an issue
framing conference and then brought [Collazo] in from SCI
Houtzdale to conduct his PCRA hearing. The hearing was
held on July 16, 2018, in which we took testimony from
[Collazo]. Although guilty plea counsel was present, he was
not called as a witness. Initially, the [Commonwealth]
argued that the [PCRA petition] was filed beyond the
jurisdictional [time frame] and should be dismissed.
Arguably the [petition] may have been a few days late, still
we accepted jurisdiction of this first PCRA[.]
Order of Court, 8/1/18, at 4. After hearing Collazo’s testimony, the PCRA
court granted PCRA counsel’s request to file a brief. By order entered on
August 1, 2018, the PCRA court denied Collazo’s PCRA petition as meritless.
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This appeal followed. Both Collazo and the PCRA court have complied with
Pa.R.A.P. 1925.
Collazo raises the following issue on appeal:
I. Whether the PCRA Court erred in denying the
requested relief where ineffective assistance of
counsel caused Collazo to enter an involuntary and
unknowing plea?
Collazo’s Brief at 4.
This Court’s standard of review regarding an order dismissing 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.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
Before addressing the merits of Collazo’s issue, we must first determine
whether the PCRA court properly possessed jurisdiction to consider the merits
of Collazo’s first petition.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
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9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2 Finally,
exceptions to the PCRA’s time bar must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues
not raised before the lower court are waived and cannot be raised for the first
time on appeal).
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1 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii).
2 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking at time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Collazo’s petition.
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Here, Collazo’s judgment of sentence became final on February 21,
2017, thirty days after this Court affirmed his judgment of sentence and the
time for filing a petition for allowance appeal to the Pennsylvania Supreme
Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Collazo had until
February 21, 2018, to file a timely PCRA petition. As he filed the petition at
issue on February 28, 2018, it is untimely, unless Collazo has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Hernandez, supra.
Collazo has failed to plead and prove an exception to the PCRA’s time
bar. At the PCRA hearing, the following exchange occurred between the
parties and the PCRA court:
[PROSECUTOR]: [B]ut if I can just clear something
up. I’m not sure if this is untimely. [PCRA] counsel, I think
in his [amended] petition, as alleged that the PCRA was filed
- - I think he says February 19th, but it looks on my - -
THE COURT: This is the first PCRA?
[PCRA COUNSEL]: It is.
[PROSECUTOR]: Correct.
THE COURT: So even if it’s not timely, I think I
have to appoint counsel and make a record with regard to
it. If it’s a second PCRA and untimely, I don’t believe that’s
necessary, but I think we need to make a record because
it’s a first filing no matter what, right?
[PROSECUTOR]: The file stamp that I have, it
appears to say February 28th.
THE COURT: Isn’t there a prisoner mailbox rule
with regard to incarcerated defendants?
[PROSECUTOR]: There may be, Judge.
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THE COURT: I think there is. I think it’s good as
of the date of mailing. Plus, it’s pretty close because of the
Superior Court’s order was January 19th, 2017.
[THE PROSECUTOR]: Correct.
THE COURT: So that would make February 18th
the cutoff date. And if it’s just a couple days late, I think
the Superior Court would still want me to make a record on
the merits. So let’s just move on then and not address the
jurisdictional claim.
N.T., 7/16/18, at 4-5.
The PCRA court erred in not first addressing whether it in fact had
jurisdiction. The PCRA court correctly concluded that, because this was
Collazo’s first PCRA petition, the court should appoint counsel even if the
petition appears untimely. See generally, Commonwealth v. Ferguson,
722 A.2d 177 (Pa. Super. 2018). In addition, under the “prisoner mailbox
rule,” a PCRA petitioner’s pro se PCRA petition is considered filed as of the
date it was handed to prison officials for mailing. Commonwealth v. Allen,
48 A.3d 1283 (Pa. Super. 2012).
Here, however, there is no indication of when Collazo gave his petition
to prison officials for mailing. In addition, the prisoner mailbox rule had no
application in this case because Collazo acknowledged the untimeliness of his
petition by asserting that he could establish one or more time-bar exception.
See Pro se PCRA Petition, 2/28/18, at 3. PCRA counsel did not discuss these
exceptions in the mistaken belief that Collazo timely filed his PCRA petition.
Nevertheless, our review of Collazo’s petition readily establishes that he did
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not properly plead governmental interference, a newly discovered fact, or a
new constitutional right.
In sum, because Collazo’s first PCRA petition was untimely and he failed
to plead and prove an exception to the PCRA’s time bar, the PCRA court lacked
jurisdiction to consider the merits of Collazo’s petition. Nevertheless, because
this Court can affirm on any basis supported by the record, Commonwealth
v. Benner, 147 A.3d 915 (Pa. Super. 2016), we affirm the order denying
post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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