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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LUIS ENRIQUE PEREZ, :
Appellant :
:
: No. 596 MDA 2016
Appeal from the PCRA Order March 21, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003523-2008
CP-06-CR-0003528-2008
CP-06-CR-0005078-2008
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 28, 2016
Appellant, Luis Enrique Perez, appeals pro se from the March 21, 2016
Order entered in the Berks County Court of Common Pleas, dismissing his
Writ of Habeas Corpus. Since Appellant’s Petition was untimely and he failed
to plead and prove an exception to the PCRA’s one-year time-bar, the PCRA
court lacked jurisdiction to entertain his claims. Accordingly, we affirm.
On September 21, 2009, Appellant pled guilty to one count each of the
following five crimes that were charged under three different docket
numbers: Possession with Intent to Deliver a Controlled Substance—
Cocaine, Driving While Operating Privilege is Suspended or Revoked,
*
Retired Senior Judge assigned to the Superior Court.
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Possession with Intent to Deliver a Controlled Substance—Cocaine, School
Zone Mandatory, Firearms Not to be Carried without a License, and
Recklessly Endangering Another Person.1 Pursuant to a plea agreement, on
the same day, the court sentenced Appellant to an aggregate term of three
to seven years’ incarceration. Appellant did not file any Post-Sentence
Motions or a direct appeal from his Judgment of Sentence. His Judgment of
Sentence thus became final on October 21, 2009.
On September 15, 2015, Appellant filed pro se the instant Petition,
titled Writ of Habeas Corpus ad Subjiciendum, challenging ”the illegal
mandatory minimum imposed under [18 Pa.C.S. §] 6317 (See
Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015).” Appellant’s Brief
at 6. The trial court considered the filing a Petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
On September 28, 2015, the PCRA court appointed counsel to
represent Appellant and granted counsel 30 days to file either an amended
Petition under the PCRA, or a “no merit” letter pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).
On December 23, 2015, counsel filed a “no merit” letter and a Petition
to Withdraw as Counsel. Appellant did not respond to counsel’s Petition.
1
35 P.S. § 780-113(a)(30), 75 Pa.C.S. § 1543(a), 35 P.S. § 780-
113(a)(30), 18 Pa.C.S. § 6106(a)(1), and 18 Pa.C.S. § 2705, respectively.
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On January 26, 2016, the PCRA court issued an Order and Notice of
Intent to dismiss Appellant’s PCRA Petition without a hearing pursuant to
Pa.R.Crim.P. 907, concluding that Appellant’s Petition was untimely filed and
Appellant had failed to plead and prove one of the statutory exceptions to
the PCRA’s time-bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). The PCRA court
also granted counsel’s Petition to Withdraw as Counsel.
On March 21, 2016, the PCRA court dismissed Appellant’s Petition.
Appellant timely appealed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises one issue on appeal: “This Court should resolve the
issue as to whether the ruling by the Pennsylvania Appellate Courts, in
finding mandatory sentencing statutes void ab initio pursuant to Alleyne v.
United States[, 133 S.Ct. 2151 (2013)], have created a position where
retroactive application of Alleyne should apply to defendant’s [sic] in
Pennsylvania based on the decision of the United States Supreme Court in
Welch v. United States, [136 S.Ct. 1257 (2016)].” Appellant’s Brief at 5.
Appellant has challenged the legality of his sentence; a challenge to
the legality of a sentence is cognizable under the PCRA. 42 Pa.C.S. § 9542;
Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004). When
raising a challenge to the legality of his sentence, “a defendant cannot
escape the PCRA time-bar by titling his petition or motion as a writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.
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2013). Accordingly, the trial court properly treated the instant Writ of
Habeas Corpus as a PCRA Petition.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether the Order is
otherwise free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803
(Pa. 2014). Before addressing the merits of Appellant’s claims, however, we
must first determine whether we have jurisdiction to entertain the
underlying PCRA Petition.
A PCRA petition must be filed within one year of the date the
underlying judgment becomes final; a judgment is deemed final at the
conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S. §§ 9545(b)(1), (3). Since the time-bar implicates the subject
matter jurisdiction of our courts, “courts are without jurisdiction to offer any
form of relief” beyond the jurisdictional time-period. Commonwealth v.
Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). This proscription extends
even to claims challenging the legality of a sentence. Id. Accordingly, no
court has jurisdiction to consider an untimely PCRA Petition.
Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).
Here, Appellant’s sentence became final on October 21, 2009, as he
did not file a direct appeal from his September 21, 2009 Judgment of
Sentence. Appellant, thus, had until October 21, 2010, to file a timely PCRA
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Petition. He filed the instant Petition almost five years later, on September
15, 2015. It is, therefore, patently untimely.
When a PCRA petition is patently untimely, a petitioner is required to
plead and prove one of the following statutory exceptions to the one-year
time-bar provided in 42 Pa.C.S. § 9545(b):
(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).
In addition, the PCRA requires that a petition invoking one of the
timeliness exceptions must be filed within 60 days of the date the claim
could have been presented. 42 Pa.C.S. § 9545(b)(2). See
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (“the 60-day
rule requires a petitioner to plead and prove that the information on
which he relies could not have been obtained earlier, despite the exercise of
due diligence.”) (emphasis added).
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Our review of the record in the instant case supports the PCRA court’s
conclusion that Appellant’s Petition was untimely filed. Appellant appears to
attempt to invoke our jurisdiction through the timeliness exception found in
Section 9545(b)(1)(iii).
Appellant argues that the PCRA court erred in relying on the PCRA to
find his petition untimely because “any timeliness provision that prevents a
challenge to a statute that is void ab initio is also unconstitutional on its
face.” Appellant’s Brief at 8-9. Appellant argues strenuously that Alleyne
announced a substantive rule that has retroactive effect in cases on
collateral review, and relies on Welch, supra. See Appellant’s Brief at 9-
12.
In Welch, the United States Supreme Court, considering its prior
holding in Johnson v. United States, 135 S.Ct. 2551 (2015), that the
imposition of an increased sentence under the federal Armed Career Criminal
Act’s residual clause violated the defendant’s due process rights, concluded
that Johnson announced a new substantive rule that has retroactive effect
on cases under collateral review.
Appellant is essentially arguing that this Court should interpret
Alleyne as announcing a substantive rule. However, our Supreme Court in
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), recently held
that Alleyne did not announce a substantive rule or a watershed procedural
rule, and does not apply retroactively on collateral review. Id. at 819-20.
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Moreover, Welch did not address Alleyne and its retroactivity.
Rather, it concluded that, “Johnson changed the substantive reach of the
Armed Career Criminal Act, altering the range of conduct or the class of
persons that the Act punishes.” Welch, 136 S.Ct. at 1265 (citation and
quotation marks omitted). In contrast, our Supreme Court in Washington
noted that the rule set forth in Alleyne is procedural because it, “allocates
the relevant decision-making authority to a jury rather than a judge[,] as
opposed to “alter[ing] the range of conduct or the class of persons punished
by the law[.]” Washington, 143 A.3d at 818 (citation omitted).
Because Appellant failed to plead and prove that one of the
enumerated exceptions to the time-bar applied to his case, the PCRA court
did not have subject matter jurisdiction over the instant PCRA petition.
Hence, the court’s March 21, 2016 Order dismissing Appellant’s petition for
collateral relief was legally sound and supported by the record.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2016
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