Com. v. Romero, A. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGELO ROMERO
Appellant No. 3101 EDA 2013
Appeal from the Order Entered October 9, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0902801-1996
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY WECHT, J.: FILED AUGUST 21, 2014
Angelo Romero appeals from the October 9, 2013 order dismissing his
1
petition pursuant to the Post- We affirm.
The PCRA court has provided a brief, but apt, review of the factual and
procedural history of this case:
On April 7, 1997, a jury presided over by the Honorable John J.
Poserina found [Romero] guilty of first[-]degree murder, criminal
conspiracy, and possession of an instrument of crime.[2] On May
29, 1997, [Romero] was sentenced to life imprisonment for
imprisonment] for [criminal] conspiracy, and one-half to five
On April 6, 1999, the Superior Court affirmed the judgment of
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1
42 Pa.C.S. §§ 9541, et seq.
2
18 Pa.C.S. §§ 2502(a), 903, and 907, respectively.
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sentence.[3] On July 29, 1999, the Pennsylvania Supreme Court
[4]
On May 5, 2000, [Romero] filed his first pro se PCRA petition.
Counsel was appointed and an amended petition was filed. On
January 28, 2002, the [p]etition was dismissed. [Romero]
appealed, and on November 21, 2002, the Superior Court
affirmed the dismissal.[5] On March 4, 2004, the Pennsylvania
[appeal.6]
On June 11, 2011, [Romero] filed the instant pro se PCRA
petition, his second.
-2 (unnumbered).
On October 5, 2011, the PCRA court filed notice of its intent to dismiss
t a hearing pursuant to Pa.R.Crim.P.
907. On October 20, 2011, Romero filed an answer objecting to the PCRA
RA court
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3
Commonwealth v. Romero, 738 A.2d 1056 (Pa. Super. April 6,
1999) (table).
4
Commonwealth v. Romero, 740 A.2d 1146 (Pa. July 29, 1999)
(table).
5
Commonwealth v. Romero, 816 A.2d 334 (Pa. Super. November 21,
2002) (table).
6
Commonwealth v. Romero, 847 A.2d 1283 (Pa. March 4, 2004)
(table).
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On November 1, 2013, Romero filed a notice of appeal. The PCRA
court did not direct Romero to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Romero did not file one.
[c]ourt abuse its discretion in denying the PCRA [petition] in th[e] instant
qualifies for an exception to the time limitation bar [of the PCRA] and that
th[e] instant case does qualify [for the] exception 42 Pa.C.S. §
9545(b)(1)(iii), pursuant to Melendez-Diaz v. Massachusetts, 557 U.S.
Like the trial court, we begin by reviewing our jurisdiction to consider
-established that the PCRA time limits are
jurisdictional, and must be strictly construed, regardless of the potential
merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,
1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-
03 (Pa. 2000), abrogated on other grounds, Murray, 943 A.2d 264(Pa.
requirements] in order to reach the merits of the claims raised in a PCRA
Murray, 753 A.2d at 203; see
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).
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In order to be timely, a petition under the PCRA must be filed within
one year of the date that the underlying judgment of sentence becomes
final. 42 Pa.C.S. §
the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
§ 9545(b)(3).
petition for allowance of appeal on July 29, 1999. Romero did not file an
appeal to the United States Supreme Court, and his time in which to do so
expired ninety days after the Pennsylvania Supreme Court denied his
petition. See U.S.Sup.Ct.R. 13(1). Consequently, Romer
sentence became final on or about October 27, 1999. Pursuant to Section
9545, Romero had until October 27, 2000, to file a timely PCRA petition.
second PCRA petition is untimely, on its face, by more than ten years.
Despite such facial untimeliness, a tardy PCRA petition nonetheless will
be considered timely if (but only if) the petitioner pleads and proves one of
the three exceptions to the one-year time limit enumerated in
subsection 9545(b) of the PCRA, which provides as follows:
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(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(2) 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). When an appellant files a facially untimely petition
under the PCRA, and fails to plead and prove one or more of the exceptions
-year jurisdictional time limit, the petition is untimely and
we must deny the appellant relief. Commonwealth v. Gamboa-Taylor,
753 A.2d 780, 784 (Pa. 2000). Moreover, even when one of the exceptions
may apply to a given petition, we will excuse the untimeliness only if the
petition was filed within sixty days of the date that the conditions underlying
the exception came to light. 42 Pa.C.S. § 9545(b)(2); Gamboa-Taylor,
753 A.2d at 783-84.
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Instantly, Romero alleges that his petition qualifies for the exception
related to retroactively applied constitutional rights. See 42 Pa.C.S. §
9545(b)(1)(iii). Specifically, Romero argues that Melendez-Diaz
announced a new constitutional right that has been held to apply
retroactively. Thus, Romero argues that we should consider his petition to
be included in one of the exceptions to the timeliness requirements of the
PCRA.
Romero is not the first Pennsylvania PCRA appellant who has sought to
circumvent the timeliness requirements of the PCRA by way of Melendez-
Diaz. In Leggett, a panel of this court adjudicated an identical claim. In
relevant part, this Court stated the following in Leggett regarding
Melendez-Diaz and Section 9545(b)(1)(iii):
-
recognized constitutional right, . . . the sixty-day period begins
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007)
(citation omitted). Therefore, as Melendez-Diaz was decided
on June 25, 2009, [a]ppellant was required to file his PCRA
petition on or before August 24, 2009 to invoke his claim within
60 days of the date the claim first could have been presented.
* * *
not excuse his failure to file a PCRA petition within sixty days of
the filing of the judicial decision which he claims established an
after-recognized constitutional right. Commonwealth v.
Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (providing that
system is
obliged to educate or update prisoners concerning changes in
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Leggett, 16 A.3d at 1146-
it is clear that Romero failed to file the instant PCRA petition within the sixty
days required
June 11, 2011, almost two years after the decision in Melendez-Diaz was
decided. Thus, even assuming, arguendo, that Melendez-Diaz could offer
Romero any relief,7 his petition was patently untimely. Therefore, we lack
jurisdiction to consider it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2014
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7
In Leggett, the panel of this Court specifically held that Melendez-
Diaz
Melendez-Diaz expressly provided that its holding was not new, but stated
Crawford v. Washington, 541 U.S.
than the application of [its] holding in Crawford Leggett, 16 A.3d at1147 (citing Melendez-Diaz, 557 U.S. at 312, 329) (citation modified).
Thus, the Court in Leggett
not specifically held that Melendez-Diaz should be applied retroactively to
Id. (emphasis added).
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