J-S31037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SALVADOR LOPEZ :
:
Appellant : No. 1030 EDA 2023
Appeal from the PCRA Order Entered March 31, 2023
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002047-2014
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 7, 2023
Salvador Lopez appeals pro se from the denial of his request for relief
under the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-9546. He
claims that the court erred in concluding that his petition was untimely. We
affirm.
In 2016, Lopez pled guilty to possession with intent to deliver cocaine,
criminal conspiracy, and corrupt organizations.1 The court sentenced Lopez to
a term of 19 to 38 years’ incarceration and a Recidivism Risk Relation
Incentive (“RRRI”) sentence of 15.83 years. We affirmed the judgment of
sentence. See Commonwealth v. Lopez, 2017 WL 4001761 (Pa.Super. filed
September 12, 2017) (unpublished memorandum). Lopez did not seek further
review.
____________________________________________
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. §§ 903 and 911(b), respectively.
J-S31037-23
Lopez filed the instant pro se PCRA petition, his second, on February 8,
2023. Lopez labeled it as a “Petition for Permission to file a Petition for
Allowance of Appeal Nun[c] Pro Tunc.” The court filed a Rule 907 notice of its
intention to dismiss the petition. See Pa.R.Crim.P. 907(1). Lopez filed a
response to the Rule 907 notice and claimed that Commonwealth v.
Bradley, 261 A.3d 381 (Pa. 2021), “constituted a ‘constitutional exception’ to
the time bar under 42 Pa.C.S.A. § 9545(b)(1)(iii).” Answer to the Court[’]s
907 Letter, filed 3/16/23, at 2 (unpaginated). The court dismissed Lopez’s
petition as untimely, and this timely appeal followed. See Order, filed 3/31/23.
Lopez raises the following issues:
1. Did [Lopez’s] Attorney violate his Due process Rights
when she failed to file [Lopez’s] appeal to the Superior
Court?
2. Should [Lopez] be time barred for not filing an appeal to
the Superior Court when he never knew that his PCRA
was dismissed years ago?
3. Should [Lopez] receive his appeal rights back Nunc Pro
Tunc because of his Attorney’s failure to file his appeal or
notify [Lopez] that his PCRA was dismissed[?]
4. Does Commonwealth v. Bradley constitute a
“constitutional exception” in [Lopez’s] case because his
PCRA attorney which was his “initial collateral Review”
counsel was ineffective[?]
5. Does the admittance by the lower Court that they did not
serve [Lopez] with the Order Dismissing his PCRA as
directed in the PCRA Court’s December 18, 2018 order
allow petitioner[] to receive his Appeal rights back Nunc
Pro Tunc?
Lopez’ Br. at 2 (unpaginated) (emphasis in original).
-2-
J-S31037-23
We review the denial of PCRA relief by determining whether the PCRA
court’s conclusions are “supported by the evidence of record and is free of
legal error.” Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013)
(citations omitted). We defer to the court’s findings that are supported by the
certified record. See id.
We do not address the merits of Lopez’s claims because his PCRA
petition is untimely. “If a PCRA petition is untimely, neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we . . . do
not have the legal authority to address the substantive claims.”
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). “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).” Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa.
2012). A judgment becomes final at the conclusion of direct review by the
Pennsylvania Supreme Court or the United States Supreme Court, or at the
expiration of the time for seeking such review. Id. at 17 (citing 42 Pa.C.S.A.
§ 9545(b)(3)). “The PCRA squarely places upon the petitioner the burden of
proving an untimely petition fits within one of the three exceptions.” Id. The
three time-bar exceptions include: 1) governmental interference in raising the
claim; 2) newly discovered facts that could not have been discovered with due
diligence; and 3) a newly recognized constitutional right that has been
recognized to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A
-3-
J-S31037-23
petitioner raising one of the time-bar exceptions must file a petition within
one year from the time the petitioner could have first claimed the exception.
See id. at § 9545(b)(2).
Here, Lopez’s judgment of sentence became final on October 12, 2017,
when the time to appeal to our Supreme Court expired. See Pa.R.A.P. 1113(a)
(“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”).
Therefore, Lopez had until October 12, 2018, to file a timely PCRA petition.
Thus, the instant petition filed almost five years later is untimely and Lopez
bore the burden of pleading and proving at least one of the time-bar
exceptions. See Jones, 54 A.3d at 17. Although Lopez did not raise a time-
bar exception in his PCRA petition, he did raise an exception in his answer to
the PCRA court’s Rule 907 notice. He claimed the newly recognized
constitutional right time-bar exception, citing Bradley. However, Bradley
affords him no relief.
Bradley involved an appeal from the dismissal of a timely PCRA petition.
Here, Lopez’s petition is untimely. As this Court has concluded, Bradley did
not “create[] a right to file a second PCRA petition outside the PCRA’s one-
year time limit as a method of raising ineffectiveness of PCRA counsel or
permit[] recognition of such a right.” Commonwealth v. Stahl, 292 A.3d
1130, 1136 (Pa.Super. 2023). The Pennsylvania Supreme Court did not
recognize a new and retroactive constitutional right, and the PCRA time-bar
exception does not apply.
-4-
J-S31037-23
Because Lopez filed his PCRA petition more than four years after his
judgment of sentence became final, and he failed to plead a time-bar
exception, the PCRA court did not err in dismissing Lopez’s petition as
untimely.
Order affirmed.
Date: 12/07/2023
-5-