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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC CARLO MARTORELL
Appellant No. 1453 MDA 2016
Appeal from the PCRA Order August 24, 2016
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000835-2009
BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 01, 2017
Eric Carlo Martorell appeals from the August 24, 2016 order dismissing
his PCRA petition as untimely. We affirm.
On March 30, 2009, Appellant was charged with three counts each of
possession of a controlled substance with intent to deliver, criminal use of a
communication facility, and possession of a controlled substance. On
September 9, 2008, while operating undercover, Pennsylvania State Trooper
Michael Lane purchased cocaine from Appellant. Trooper Lane called
Appellant’s cell phone and asked to buy one ounce of cocaine. Appellant
agreed to the sale, and they arranged to meet at the Porch Restaurant,
which was located at the intersection of Millardsville and Tulpenhocken
Roads, Jackson Township. Trooper Lane and Appellant sat at a table,
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Appellant handed the Trooper a cigarette box containing a baggie with
cocaine in it, and Trooper Lane gave Appellant $900.
On October 8, 2008, Trooper Lane made another purchase of cocaine
from Appellant. The Trooper called Appellant at the same cell phone
number, but Appellant did not answer. About fifteen minutes thereafter,
Appellant called Trooper Lane’s phone and asked who he was. Trooper Lane
responded, “Mike, with the Harley,” and Appellant recalled meeting him.
Affidavit of Probable Cause, 3/30/09, at 1. Trooper Lane asked to purchase
another ounce of cocaine, and the two men arranged to meet at Gionotti’s
Restaurant in Robesonia, Heidelberg Township. After sitting at the bar
together, the two men consummated the sale in the back of the restaurant.
Appellant handed Trooper Lane a cigarette box containing a baggie with
cocaine, and received $900 in return.
On October 23, 2008, Trooper Lane again arranged to buy one ounce
of cocaine from Appellant, who indicated that the price had increased by
$100. The sale was completed at Gionatti’s Restaurant. Appellant again
placed the cocaine in a baggie in a cigarette box and handed it to Trooper
Lane, who gave Appellant $1,000.
On August 27, 2009, Appellant tendered a guilty plea to the charges,
and on September 30, 2009, he was sentenced to ten to twenty years
imprisonment. Appellant filed a pro se post-sentence motion for
modification of his sentence. That motion was denied because Appellant
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“agreed in his guilty plea to a minimum of ten years with the court to set the
maximum.” Order, 10/16/09, at 1 (unnecessary capitalization omitted).
On January 22, 2016, Appellant filed the PCRA petition at issue in this
appeal, and counsel was appointed. PCRA relief was denied on August 24,
2016, and this appeal followed. Appellant presents one contention,
“Whether the Trial Court erred in denying Appellant’s PCRA Petition as
untimely?” Appellant’s brief at 4. We first observe that this Court reviews
the “denial of PCRA relief to determine whether the findings of the PCRA
court are supported by the record and free of legal error.” Commonwealth
v. Roane, 142 A.3d 79, 86 (Pa.Super. 2016) (quoting Commonwealth v.
Treiber, 121 A.3d 435, 444 (Pa. 2015)).
Next, it is axiomatic that all PCRA petitions must be filed within one
year of the date a defendant’s judgment becomes final unless an exception
to the one-year time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA
petition is untimely, “neither this Court nor the trial court has jurisdiction
over the petition.” Commonwealth v. Miller, 102 A.3d 988, 992
(Pa.Super. 2014) (citation omitted); see also Commonwealth v. Chester,
895 A.2d 520, 522 (Pa. 2006). “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
time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
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In this case, Appellant did not file a direct appeal so that his
September 30, 2009 judgment of sentence became final on October 30,
2009,1 and he had until October 30, 2010 to file a timely petition. The
January 22, 2016 petition was patently untimely. There are three
exceptions to the one-year time bar of § 9545:
(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)(i-iii).
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1
We note that, since Appellant was represented when he filed his pro se
post-sentence motion, it was of no legal effect. Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (when defendant was
represented by counsel, “his pro se post-sentence motion was a nullity,
having no legal effect”); accord Commonwealth v. Reid, 117 A.3d 777,
781 n.8 (Pa.Super. 2015) (where defendant was “represented by counsel at
the time he filed his pro se motion for reconsideration,” that motion was a
nullity); see also Commonwealth v. Ali, 10 A.3d 282 (2010) (pro se
1925(b) statement filed by a represented defendant was a nullity). Hence,
we conclude that the motion did not serve to extend the date that
Appellant’s judgment of sentence became final.
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Appellant invokes the newly-recognized constitutional right exception.
He avers that his sentence, which included a term of imprisonment involving
a mandatory minimum sentence applicable due to the weight of the cocaine
involved, was illegal under the United States Supreme Court’s decision in
Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne, the Court
held that, under the Sixth Amendment’s right to a jury trial, facts that
invoke the application of a mandatory minimum sentence must be submitted
to a jury and found beyond a reasonable doubt. Appellant argues that
Alleyne “established a new constitutional right” and his petition was timely
under § 9545(b)(1)(iii). Appellant’s brief at 11.
The first flaw in this position is that Appellant did not timely invoke the
newly-created constitutional right exception in the first instance. Section
9545(b)(2) of the PCRA expressly states, “Any petition invoking an exception
provided in paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2). Alleyne was filed on
June 17, 2013, and Appellant had until August 16, 2013, to fall within the
after-recognized constitutional right exception based upon Alleyne.
Appellant counters that “he filed his PCRA Petition as diligently as he could
after becoming privy to the Alleyne v. United States decision.” Appellant’s
brief at 11. However, when Appellant actually found out about the Alleyne
decision is not the pertinent inquiry herein; the date of the filing of the case
in question is the triggering date for application of § 9545(b)(1)(iii).
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Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (sixty-
day time period for filing a timely PCRA petition invoking new decisional law
begins to run when that case was filed and not when defendant became
aware of it); see also Commonwealth v. Whitehawk, 146 A.3d 266, 271
(Pa.Super. 2016). Since Appellant’s petition was not filed by August 16,
2013, he did not timely assert the newly recognized constitutional right
exception as to the Alleyne decision.
Additionally, Alleyne is not retroactive. Commonwealth v.
Washington, 142 A.3d 810, 811 (Pa. 2016) (holding that Alleyne does not
apply retroactively “to attacks upon mandatory minimum sentences
advanced on collateral review”). Appellant also does not fall within the
parameters of the newly-recognized constitutional right exception because §
9545(b)(1)(iii) mandates that the right be held by the United States
Supreme Court or the Pennsylvania Supreme Court to apply retroactively.
Miller, supra (Alleyne does not fall within newly-created constitutional
right exception to one-year time bar of PCRA as it has not made
retroactively applicable).
Appellant also observes that his sentence is illegal. Appellant’s brief at
11. A legality of sentence issue is not subject to waiver principles, and
Alleyne does pertain to the legality of a sentence. Commonwealth v.
Barnes, 2016 WL 7449232 (Pa. Dec. 28, 2016). However, a legality-of-
sentence issue still must be raised in a timely PCRA petition.
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Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although a
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA's time limits or one of the exceptions thereto”).
Thus, Appellant cannot overcome the one-year filing deadline for this PCRA
petition based upon the position that his sentence was illegal.
The PCRA court did not abuse its discretion or commit an error of law
in dismissing the present PCRA petition as untimely, and we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
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