Com. v. Rojo, J., Jr. ( 2016 )

J. S36021/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JOSE GUADALUPE ROJO, JR., :
:
Appellant : No. 1846 MDA 2015
Appeal from the PCRA Order September 30, 2015
In the Court of Common Pleas of Adams County
Criminal Division No.: CP-01-CR-0000237-2010
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED JULY 22, 2016
Appellant, Jose Guadalupe Rojo, Jr., appeals from the Order entered in
the Adams County Court of Common Pleas dismissing his first Petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as
untimely. Additionally, Appellant’s appointed counsel, Thomas R. Nell,
Esquire (“Attorney Nell”), has filed a Petition to Withdraw as counsel and an
accompanying 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). After careful review, we grant Attorney Nell’s
Petition to Withdraw and affirm on the basis that Appellant’s PCRA Petition is
untimely and that this Court lacks jurisdiction to review the Petition.
*
Former Justice specially assigned to the Superior Court.
J.S36021/16
On June 28, 2010, Appellant entered a negotiated guilty plea to one
count of Possession of a Controlled Substance With Intent to Deliver
(“PWID”).1 The same day, the trial court imposed the negotiated sentence
of 5 to 10 years’ incarceration.2 Appellant did not file a direct appeal. His
Judgment of Sentence, therefore, became final on July 28, 2010. See 42
Pa.C.S. § 9545(b)(3).
Appellant filed the instant pro se PCRA Petition, his first, on July 20,
2015. Appellant claimed his plea counsel had been ineffective and that his
sentence is excessive and illegal. On August 12, 2015, the PCRA court
issued a Pa.R.Crim.P. 907 Notice advising Appellant of its intent to dismiss
his Petition based on lack of jurisdiction, and appointed Attorney Nell as
counsel. Appellant filed an Amended PCRA Petition on September 21, 2015,
raising additional claims of ineffective assistance of counsel and
constitutional violations.
On September 30, 2015, the PCRA court dismissed Appellant’s Petition
without a hearing, concluding it lacked jurisdiction to consider Appellant’s
underlying claim because the Petition was untimely and Appellant failed to
plead and prove a timeliness exception. Appellant filed a Notice of Appeal
1
35 P.S. § 780-113(a)(30).
2
The sentence included a sentence imposed for a conviction in another
matter docketed at CP-01-CR-00104-2010. That matter is not at issue in this
appeal.
-2-
J.S36021/16
on October 21, 2015. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
On February 1, 2016, Attorney Nell filed with this Court a Petition to
Withdraw as counsel, and an accompanying Turner/Finley no-merit letter,
asserting counsel’s opinion that there were no non-frivolous issues to be
raised on appeal. Appellant did not respond to Attorney Nell’s Petition to
Withdraw as Counsel.
Before we consider Appellant’s arguments, we must review Attorney
Nell’s request to withdraw from representation. Pursuant to Turner/Finley,
independent review of the record by competent counsel is required before
withdrawal on collateral appeal is permitted. Commonwealth v. Pitts, 981
A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a “no
merit” letter (1) detailing the nature and extent of his or her review; (2)
listing each issue the petitioner wished to have reviewed; and (3) providing
an explanation of why the petitioner’s issues were meritless. Id. The court
then conducts its own independent review of the record to determine if the
Petition is meritless. Id. Counsel must also send to the petitioner: “(1) a
copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721
(Pa. Super. 2007) (citation omitted).
-3-
J.S36021/16
Our review of the record discloses that Attorney Nell has complied with
each of the above requirements. In addition, Attorney Nell sent Appellant
copies of the Turner/Finley no-merit letter and his Petition to Withdraw,
and advised him of his rights in lieu of representation in the event that the
court granted Attorney Nell permission to withdraw. See Commonwealth
v. Widgins, 29 A.3d 816, 818 (Pa. Super. 2011). Since Attorney Nell has
complied with the Turner/Finley requirements, we will proceed with our
independent review of the record and the merits of Appellant’s claims.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
In the Turner/Finley letter, Attorney Nell indicated Appellant wished
to challenge the effectiveness of counsel and the legality of his sentence.
Before addressing the merits of Appellant’s claims, we must first determine
whether we have jurisdiction to entertain the underlying PCRA Petition. See
Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that
the timeliness of a PCRA Petition is a jurisdictional requisite).
-4-
J.S36021/16
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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 the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
The PCRA’s timeliness requirements are jurisdictional in nature, and a court
may not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010).
Here, Appellant’s Judgment of Sentence became final on July 28,
2010, upon expiration of the time to file a Notice of Appeal with the
Pennsylvania Superior Court. See 42 Pa.C.S. § 9545(b)(3). In order to be
timely, Appellant needed to submit his PCRA Petition by July 28, 2011. Id.
Appellant filed this PCRA Petition on July 20, 2015, well after the one-year
deadline. The PCRA court properly concluded that Appellant’s Petition is
facially untimely. PCRA Court Opinion, dated 12/28/15, at 3.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), which provides the following:
(b) Time for filing petition.
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
-5-
J.S36021/16
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)(1)-(2). See, e.g., Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (reviewing specific facts that demonstrated the
claim had been timely raised within 60-day timeframe).
Appellant attempts to invoke the timeliness exception under Section
9545(b)(1)(iii) in his challenge to the legality of his sentence, relying on
Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013). As long as this Court has jurisdiction over the matter, a legality of
sentencing issue is reviewable and cannot be waived. Commonwealth v.
Jones, 932 A.2d 179, 182 (Pa. Super. 2007). However, a legality of
sentencing issue must be raised in a timely filed PCRA Petition. See 42
Pa.C.S. § 9545(b)(2); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
-6-
J.S36021/16
1999) (“Although 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”). Appellant must present an illegal sentencing claim in a
timely PCRA Petition over which we have jurisdiction. See Fahy, supra at
223, and Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014)
(en banc) (explaining that the decision in Alleyne does not invalidate a
mandatory minimum sentence when presented in an untimely PCRA
Petition).
The United States Supreme Court decided Alleyne on June 17, 2013.
In order to invoke the “constitutional right” exception under 42 Pa.C.S. §
9545(b)(1)(iii), Appellant needed to submit his PCRA petition within 60 days
of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.
Super. 2007) (stating that the 60-day period begins to run upon the date of
the underlying judicial decision). Appellant filed this PCRA Petition on July
20, 2015, well after 60 days of the Alleyne decision.
Because Appellant’s Judgment of Sentence was final when Alleyne
was decided and because he filed an untimely PCRA Petition, the instant
case is indistinguishable from Miller. Accordingly, the PCRA court properly
concluded that Appellant failed to plead and prove any of the timeliness
exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed
Appellant’s Petition is untimely. PCRA Court Opinion, dated 12/28/15, at 2-
5.
-7-
J.S36021/16
In sum, (1) Appellant’s PCRA Petition was facially untimely and he did
not plead and prove the applicability of any of the three statutory timeliness
exceptions; (2) the PCRA court properly dismissed Appellant’s PCRA Petition
without an evidentiary hearing; and (3) Attorney Nell fulfilled the procedural
requirements of Turner/Finley. We, thus, affirm the denial of PCRA relief
and grant counsel’s Petition to Withdraw.
Order affirmed. Petition to Withdraw granted. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
-8-