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[U] Commonwealth v. Torres

Superior Court of Pennsylvania

February 12, 2014



Appeal from the PCRA Order April 23, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000050-2011




Appellant, Angel Torres, appeals from the April 23, 2013 order dismissing as untimely his petitions filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant facts and procedural history of this case as follows.

On March 30, 2011, pursuant to a negotiated plea agreement with the Commonwealth, [Appellant] pled guilty to one (1) count of Criminal Attempt/ Theft by Deception1 and one (1) count of Criminal Conspiracy/Theft by Deception.2 The guilty pleas stemmed from [Appellant]'s actions on September 1, 2010, when, according to the Criminal Information and Criminal Complaint, he and co-conspirator Daniel Figueroa entered All County Coins at 450 East Cumberland Street, Lebanon and presented several pieces of gold jewelry to the store clerk. The clerk tested the items with a bottle of gold testing acid and found them to be gold. The clerk then left the counter area and observed [Appellant] take the bottle of gold testing acid from the counter and replace it with a similar bottle that did not contain gold testing solution. Because the clerk had been warned by police of similar scams in the area, the clerk locked the doors and phoned the police. When the police arrived, they found Daniel Figueroa to have in his possession four pieces of gold-colored jewelry which were not gold but were nonetheless labeled "14 kt." Had the items been tendered to the clerk for sale, they would have tested as gold with the substituted testing solution and netted [Appellant] and his co-conspirator $ 2, 800.00.
At the time of his plea, the charges to which [Appellant] pled guilty each carried a maximum sentence of seven (7) years and a fine of $ 15, 000[.00]. The standard range of the sentencing guidelines for each offense called for a minimum sentence of 12-18 months. [Appellant]'s negotiated plea agreement with the Commonwealth called for an aggregate sentence of one (1) year to a maximum of three (3) to five (5) years, with the [trial c]ourt to set the maximum within the agreed upon range.
At sentencing on April 27, 2011, th[e trial c]ourt, with the benefit of a presentence investigation report detailing a prior record spanning over twenty-nine years, sentenced [Appellant] to concurrent state terms of one (1) to five (5) years imprisonment and fines of $300 on each count. At the time of his sentence, [Appellant] was advised [of] his right to appeal his judgment of sentence within thirty (30) days, by May 27, 2011. [Appellant] did not pursue an appeal.
On August 2, 2012, [Appellant] filed a pro se [PCRA petition] with th[e PCRA c]ourt. The pro se Petition asserted that [Appellant] was unlawfully induced by plea counsel to plead guilty to an illegal sentence and that plea counsel was ineffective for having [Appellant] plead guilty to an illegal sentence. The Petition further argued that [Appellant] only became aware that his sentence was illegal on June 15, 2012.
On August 6, 2012, the [PCRA c]ourt appointed counsel for [Appellant] and issued a Rule upon the Commonwealth as to why a hearing should not be held. The Commonwealth filed its response on September 6, 2012.
On January [8], 2013, th[e PCRA c]ourt issued an Order, pursuant to Pa.R.Crim.P. 907(1), indicating the [PCRA c]ourt's intention to dismiss [Appellant]'s claim for relief without a hearing. The Order noted that the [Appellant]'s Petition was untimely on its face. Although [Appellant]'s pro se petition made a vague reference to "after-discovered evidence" and seemed to link that phrase to his assertion that he only realized his sentence was illegal on June 15, 2012, [the PCRA court] noted he had not pled the existence of any specific newly discovered fact regarding his sentence that was unknown to him and could not have been obtained through the exercise of due diligence prior to May 27, 2012. Thus[, the PCRA court] found that [Appellant] had failed to plead and to prove an exception to the timeliness requirements of 42 Pa.C.S.A. § 9545(b)(1). Th[e PCRA c]ourt's January [8], 2013 Order also noted that, even if [Appellant]'s petition had been timely, his underlying claims for relief-- an illegal sentence and unlawful inducement and ineffective assistance on the part of plea counsel --were devoid of specificity and lacked merit based upon the record of the case.
1 18 Pa.C.S.A. § 901(a)/18 Pa.C.S.A. § 3922(a)(1).
2 18 Pa.C.S.A. § 903(a)(1)/18 Pa.C.S.A. § 3922(a)(1). PCRA Court Opinion, 4/23/13, at 1-5 (some footnotes omitted; emphasis added).

On January 29, 2013, Appellant's counsel filed an amended PCRA petition on Appellant's behalf, wherein he raised additional claims of ineffectiveness of counsel but failed to address the timeliness issue. See Amended Petition for Post-Conviction Relief Pursuant to [PCRA], 1/29/13, at ¶ 5. On January 31, 2013, the PCRA court issued a Rule to Show Cause upon the Commonwealth as to why a hearing should not be granted on the additional ineffectiveness claims raised in Appellant's amended PCRA petition. On March 1, 2013, the Commonwealth filed its response. Thereafter, on April 23, 2013, the PCRA court filed an opinion and order dismissing Appellant's petitions. Specifically, the PCRA court concluded that Appellant's petitions were untimely, and that he failed to plead and prove an exception to the time-bar. PCRA Court Opinion, 4/23/13, at 6-9. Despite acknowledging that it lacked the jurisdiction to do so, the PCRA court elected to address Appellant's underlying claims of ineffective assistance of counsel, and concluded they were devoid of merit. See id. at 9-22.

On May 6, 2013, Appellant filed a pro se notice of appeal, docketed at No. 836 MDA 2013. Thereafter, on May 15, 2013, appointed counsel filed a timely notice of appeal on Appellant's behalf, docketed at No. 860 MDA 2013. On June 4, 2013, this Court dismissed the appeal at No. 836 MDA 2013 as duplicative. See Per Curiam Order, 6/4/13.[1]

On appeal, Appellant raises the following issues for our review.

1. Whether plea counsel was ineffective for unlawfully inducing [Appellant] to plead guilty by advising [Appellant] that he would get a lesser sentence if he accepted the plea agreement rather than accepting an open plea[?]
2. Whether plea counsel was ineffective for failing to object to [Appellant's] sentence as being unlawful when trial court failed to give a factual basis for imposing said sentence on [Appellant?]

Appellant's Brief at 4.

"On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court's findings are supported by the record and without legal error." Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied, Edmiston v. Pennsylvania, 134 S.Ct. 639 (2013). "[Our] scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level." Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation omitted). In order to be eligible for PCRA relief, a petitioner must plead and prove by a preponderance of the evidence that his conviction or sentence arose from one or more of the errors listed at 42 Pa.C.S.A. § 9543(a)(2). These issues must be neither previously litigated nor waived. 42 Pa.C.S.A. § 9543(a)(3). "[T]his Court applies a de novo standard of review to the PCRA court's legal conclusions." Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011) (citation omitted).

Before we may address the merits of a PCRA petition, we must first consider the petition's timeliness because it implicates the jurisdiction of both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa. 2012). We may raise issues concerning our appellate jurisdiction sua sponte. Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008). "Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition." Id. The PCRA "confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar[.]" Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted). This is to "accord finality to the collateral review process." Id. "A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met." Commonwealth v. Harris, 972 A.2d 1196, 1199-1200 (Pa.Super. 2009), appeal denied, 982 A.2d 1227 (Pa. 2009).

Section 9545 provides, in relevant part, as follows. (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 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.A. § 9545(b).

In the instant matter, Appellant was sentenced to an aggregate term of one to five years' imprisonment on April 27, 2011. As noted, Appellant did not file a direct appeal with this Court. Thus, Appellant's judgment of sentence became final on May 27, 2011, when the 30-day period for Appellant to file a direct appeal in this Court expired. See id. § 9545(b)(3). Therefore, in order to be timely, Appellant's PCRA petition had to be filed by May 27, 2012. Appellant filed his pro se PCRA petition on August 2, 2012, and an amended petition on January 29, 2013. Accordingly, Appellant's petitions are untimely, and Appellant must plead and prove one of the three enumerated statutory exceptions to the time-bar.

Our review of Appellant's 14-page appellate brief reveals that Appellant has neither alleged nor proven a cognizable time-bar exception to the PCRA time-bar. Notably, Appellant's brief does not contain any citation whatsoever to Section 9545. Without a pled and successfully proven exception to the time-bar, we are without jurisdiction to address the merits of the arguments raised. Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

Accordingly, having concluded that Appellant's pro se and amended PCRA petitions were untimely filed and that no cognizable exception to the time-bar applies, we discern no error on the part of the PCRA court in dismissing said petitions as untimely. Therefore, we affirm the April 23, 2013 order of the PCRA court. Order affirmed.

Judgment Entered.

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