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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PAUL SERRANO, III :
:
Appellant : No. 1080 EDA 2017
Appeal from the Judgment of Sentence February 21, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001487-2007
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 01, 2017
Appellant, Paul Serrano, appeals from the judgment of sentence
entered after his second plea of guilty to first degree murder. His first guilty
plea was withdrawn after a PCRA court determined that it had been
unknowingly entered. After careful review, we conclude that the PCRA court
lacked jurisdiction to void Serrano’s first guilty plea, and therefore quash.
Our disposition of this appeal requires a detailed recitation of the
procedural history of this case. In 2007, the Commonwealth charged
Serrano with the murder of Kevin Muzila. At the time he was arrested and
charged, Serrano was 18 years old; at the time he murdered Muzila, he was
17. The Commonwealth mistakenly charged Serrano as an adult, and gave
notice of its intent to seek the death penalty.
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However, in 2005 the Supreme Court of the United States had
declared that sentencing a juvenile offender to death violated the
Constitution’s prohibition on cruel and unusual punishments. See Roper v.
Simmons, 543 U.S. 551 (2005). Serrano unknowingly agreed to plead
guilty to first-degree murder and waive his right to file a direct appeal in
exchange for the Commonwealth’s promise to waive its right to pursue the
now-illegal death sentence. As a result, he received the only other possible
sentence under existing Pennsylvania law, life without the possibility of
parole.
In 2009, Serrano filed a pro se Post Conviction Relief Act (“PCRA”)
petition, asserting that his guilty plea counsel were ineffective for failing to
inform him that he was not eligible for the death penalty under Roper. He
further requested the appointment of counsel to assist him. The PCRA court
swiftly dismissed the petition as untimely under Pa.R.Crim.P. 901(A) without
appointing counsel or holding a hearing.
Pursuant to 42 Pa.C.S.A § 9545(b)(1), a PCRA petition must be filed
within one year from the day the petitioner’s judgment became final.
Serrano did not file a direct appeal from his judgment of sentence, so it
became final on Thursday, September 13, 2007, 30 days after its entry. See
Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Thus,
Serrano would have been required to file his first petition on or before
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Monday, September 15, 2008. He did not file his first petition until April 16,
2009.
However, exceptions to the timeliness requirement exist. See
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Serrano was entitled to have counsel
appointed to assist him in the prosecution of his first PCRA petition to
determine if any of these exceptions applied. See Commonwealth v.
Smith, 818 A.2d 494, 499 (Pa. 2003). As noted, the PCRA court dismissed
Serrano’s petition as untimely without providing him counsel.
In 2016, Serrano filed a counseled, second PCRA petition asserting
that his sentence of life without possibility of parole was illegal pursuant to
Miller v. Alabama, 567 U.S. 460 (2012) (ruling imposition of mandatory
life without parole sentences on juvenile offenders is unconstitutional), and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (finding the rule
announced in Miller to be applied retroactively on collateral review). This
petition did not address the jurisdictional timeliness requirement of the
PCRA.
After an off-the-record discussion, the PCRA court appointed new
counsel to represent Serrano, approved the hiring of a private investigator,
and permitted the filing of an amended petition. In the amended petition,
Serrano asserted that his guilty plea should be voided, as he was unaware
that he was ineligible for the death penalty. He also reiterated that his
sentence was unconstitutional pursuant to Miller and Montgomery. The
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amended petition also does not address the jurisdictional timeliness
requirement of the PCRA.
The Commonwealth conceded that Serrano’s guilty plea was
unknowing and agreed to allow him to withdraw it. See Trial Court Order,
11/4/16. The Commonwealth initially offered a new plea agreement whereby
Serrano would receive a thirty year to life sentence if he pled guilty
immediately. See N.T., PCRA Hearing, 11/2/16, at 6-7. Serrano rejected the
agreement, and was granted a new trial. See id., at 12. Furthermore, new
counsel1 was appointed to represent Serrano at trial. See id.
Serrano filed an omnibus pretrial motion seeking a change in venue,
discovery, and a clarification of sentencing options. Regarding sentencing
options, Serrano argued that he could not be sentenced under 18 Pa.C.S.A.
§ 1102.1, as it would constitute an impermissible ex post facto increase in
his penalty. The trial court denied these motions, and scheduled the case for
trial. See Trial Court Order, 2/17/17. On February 21, 2017, Serrano
entered into a negotiated guilty plea to first degree murder. In exchange, he
received a sentence of 35 years to life. This appeal followed.
On appeal, Serrano contends that a sentence of 20 to 40 years in
prison is the maximum sentence he can receive. However, we do not reach
____________________________________________
1 Counsel who filed the amended 2016 petition informed the court that he
could not proceed in the matter, as he would suffer from a clear conflict of
interest.
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this issue, as we conclude that the PCRA court did not have jurisdiction to
void Serrano’s initial guilty plea.
We may raise issues concerning our jurisdiction over an appeal sua
sponte. See Roman v. McGuire Memorial, 127 A.3d 26, 31 (Pa. Super.
2015), appeal denied, 134 A.3d 57 (Pa. 2016). “PCRA timeliness
requirements are jurisdictional in nature and, accordingly, a court cannot
hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d
489, 509 (Pa. 2004) (citations omitted).
As noted, Serrano’s first PCRA petition, filed April 16, 2009, was
untimely and did not allege any exceptions to the PCRA’s time bar. Thus,
Serrano’s 2016 initial petition and the amendment are also facially untimely.
Neither of the 2016 petitions assert any exception to the PCRA’s time bar.
While there is a conspicuous absence in the record of reasons for why
the Commonwealth conceded to, and the PCRA court granted, Serrano’s
desire to withdraw his guilty plea, we can understand the impetus behind
these decisions. Clearly, guilty plea counsel were ineffective for failing to
advise Serrano that he was ineligible for the death penalty at the time he
pled guilty. Furthermore, it is clear there was a breakdown in the operations
of the court when the PCRA court failed to afford Serrano his Rule-based
right to counsel for his first petition.
However, it is also clear that the PCRA court lacked jurisdiction, at this
juncture, to entertain any of these three petitions. If a PCRA petition is
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facially untimely, the petitioner must plead and prove the applicability of one
of three timeliness exceptions in order to invoke the jurisdiction of the PCRA.
See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Here, none of Serrano’s petitions pled, let alone proved, the applicability of a
timeliness exception.
“Where a court is without jurisdiction it is without power to act and
thus, any order that it issues is null and void.” Commonwealth v. Morris,
771 A.2d 721, 735 (Pa. 2001) (citations omitted). The PCRA court’s order
withdrawing Serrano’s guilty plea was a nullity. The ensuing proceedings are
therefore a nullity, as Serrano’s initial judgment of sentence is still effective.
Thus, Serrano’s appeal from a non-existent judgment of sentence is also a
nullity. See Commonwealth v. Spencer, 496 A.2d 1156, 1160 (Pa. Super.
1985). We are constrained to quash this appeal.
We note that, as a consequence, Serrano’s amended second PCRA
petition is still pending. We do not address whether it may be further
amended to plead appropriate timeliness exceptions. That is for Serrano’s
counsel to develop, and the PCRA court to decide.
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2017
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