Com. v. Cervantes, J. ( 2018 )


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  • J-S11033-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA :              IN THE SUPERIOR COURT OF
    :                    PENNSYLVANIA
    :
    v.                 :
    :
    :
    JOSUE A. CERVANTES,          :
    :
    Appellant     :                   No. 2076 EDA 2017
    Appeal from the PCRA Order May 31, 2017
    in the Court of Common Pleas of Chester County,
    Criminal Division at No(s): CP-15-CR-0001759-2009
    BEFORE: OTT, J., STABILE, J., and MUSMANNO, J.
    MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 09, 2018
    Josue A. Cervantes (“Cervantes”) appeals, pro se, from the Order
    dismissing his second Petition filed pursuant to the Post Conviction Relief Act
    (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
    On January 25, 2010, a jury found Cervantes guilty of two counts each
    of aggravated indecent assault and indecent assault, and one count each of
    criminal trespass, attempted criminal trespass, and sexual assault. The trial
    court sentenced Cervantes to a prison term of six to twelve years, followed by
    ten years of probation. While Cervantes was not found to be a sexually violent
    predator, he was subject to lifetime registration based upon his sexual assault
    conviction. On July 15, 2011, this Court affirmed the judgment of sentence,
    and on December 28, 2011, the Supreme Court of Pennsylvania denied
    Cervantes’s Petition for Allowance of Appeal.       See Commonwealth v.
    J-S11033-18
    Cervantes, 
    32 A.3d 270
    (Pa. Super. 2011) (unpublished memorandum),
    appeal denied, 
    34 A.3d 81
    (Pa. 2011).
    In December 2012, Cervantes filed a timely first PCRA Petition. The
    PCRA court appointed Cervantes counsel, who subsequently filed a Petition to
    Withdraw and a          Turner/Finley1 “no-merit” letter.      After issuing a
    Pa.R.Crim.P. 907 Notice, the PCRA court dismissed Cervantes’s first PCRA
    Petition and granted counsel’s Petition to Withdraw.
    On May 3, 2017, Cervantes, pro se, filed his second PCRA Petition. The
    PCRA court issued a Rule 907 Notice. Cervantes filed a Response. Thereafter,
    the PCRA court dismissed Cervantes’s Petition. Cervantes filed a timely Notice
    of Appeal, and a court-ordered Pa.R.A.P. 1925(b) Concise Statement.
    We review an order dismissing a petition under the PCRA in
    the light most favorable to the prevailing party at the PCRA level.
    This review is limited to the findings of the PCRA court and the
    evidence of the record. We will not disturb a PCRA court’s ruling
    if it is supported by evidence of record and is free of legal error.
    Commonwealth v. Ford, 
    44 A.3d 1190
    , 1194 (Pa. Super. 2012) (citations
    omitted).
    Initially, under the PCRA, any PCRA petition, “including a second or
    subsequent petition, shall be filed within one year of the date the judgment
    becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).     A judgment of sentence
    becomes final “at the conclusion of direct review, including discretionary
    ____________________________________________
    1Commonwealth v. Turner, 
    544 A.2d 927
    (Pa. 1988); Commonwealth v.
    Finley, 
    550 A.2d 213
    (Pa. Super. 1988) (en banc).
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    J-S11033-18
    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.”         
    Id. § 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. See Commonwealth v. Albrecht, 
    994 A.2d 1091
    , 1093
    (Pa. 2010).
    Cervantes’s sentence became final on March 27, 2012, after the time to
    seek review with the United States Supreme Court had expired. See SUP. CT.
    R. 13. Because Cervantes filed the instant PCRA Petition on May 3, 2017, his
    Petition is patently untimely.
    However, Pennsylvania courts may consider an untimely petition if the
    appellant can explicitly plead and prove one of three exceptions set forth under
    42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions
    “shall be filed within 60 days of the date the claim could have been presented.”
    
    Id. § 9545(b)(2);
    Albrecht, 994 A.2d at 1094
    .
    Here, Cervantes did not plead or prove any exception to the PCRA’s
    timeliness requirement in his Petition.2       See Commonwealth v. Ousley, 
    21 A.3d 1238
    , 1242 (Pa. Super. 2011) (stating that issues not raised in a PCRA
    ____________________________________________
    2 We note that Cevantes’s ineffective assistance of counsel claims do not
    implicate a timeliness exception. See Commonwealth v. Wharton, 
    886 A.2d 1120
    , 1127 (Pa. 2005) (stating that “allegations of ineffective assistance
    of counsel will not overcome the jurisdictional timeliness requirements of the
    PCRA.”).
    -3-
    J-S11033-18
    petition will not be considered on appeal); see also 
    Wharton, 886 A.2d at 1126
    (stating that it is petitioner’s burden to acknowledge that the PCRA
    petition under review is untimely and plead and prove that one of the
    exceptions to the time bar applies).3
    Thus, because Cervantes did not invoke any of the three exceptions
    necessary to circumvent the PCRA’s timeliness requirement, we lack
    jurisdiction to address the merits of his claims on appeal.
    ____________________________________________
    3 We note that in his appellate brief, Cervantes cites to the governmental
    interference exception, alleging that the Department of Corrections prevented
    him from obtaining discovery. See Brief for Appellant at 14-15. However, he
    has not provided any evidence to support the allegation or demonstrated why
    such interference prevented him from raising the claim in a timely manner.
    Cervantes also cites to the newly-recognized constitutional right exception,
    arguing that our Supreme Court’s decision in Commonwealth v. Muniz, 
    164 A.3d 1189
    (Pa. 2017), rendered the lifetime registration requirement
    unconstitutional. See Brief for Appellant at 45-46. Our Court recently
    addressed a similar claim and concluded that Muniz does not properly invoke
    the newly-recognized constitutional right exception:
    Here, we acknowledge that this Court has declared that, “Muniz
    created a substantive rule that retroactively applies in the
    collateral context.” Commonwealth v. Rivera–Figueroa, 
    174 A.3d 674
    , 678 (Pa. Super. 2017). However, because [a]ppellant’s
    PCRA petition is untimely (unlike the petition at issue in Rivera–
    Figueroa), he must demonstrate that the Pennsylvania
    Supreme Court has held that Muniz applies retroactively in
    order to satisfy section 9545(b)(1)(iii).      [See 42 Pa.C.S.A.
    § 9545(b)(1)(iii).] Because at this time, no such holding has been
    issued by our Supreme Court, [a]ppellant cannot rely on Muniz
    to meet that timeliness exception.
    Commonwealth v. Murphy, 
    2018 Pa. Super. 35
    , *3 (Pa. Super. 2018)
    (emphasis in original).
    -4-
    J-S11033-18
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/9/18
    -5-