Com. v. Mancebo, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ALBERTO ALFONSO MANCEBO :
:
Appellant : No. 64 MDA 2018
Appeal from the PCRA Order December 20, 2017
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003677-2010
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 16, 2018
Appellant, Alberto Alfonso Mancebo, appeals pro se from the order
entered in the Berks County Court of Common Pleas, which dismissed as
untimely his second petition for collateral relief (labeled a petition for writ of
habeas corpus), per the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.
§§ 9541-9546. On February 1, 2011, a jury convicted Appellant of one count
each of delivery of a controlled substance and possession of a controlled
substance. The court sentenced Appellant on February 2, 2011, to 10 to 20
years’ incarceration. After a remand for counsel to file a Pa.R.A.P. 1925(b)
statement, this Court affirmed the judgment of sentence on December 22,
2011; our Supreme Court denied allowance of appeal on May 10, 2012. See
Commonwealth v. Mancebo, 40 A.3d 201 (Pa.Super. 2011), appeal denied,
615 Pa. 791, 44 A.3d 1161 (2012). Appellant sought no further review, so
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the judgment of sentence became final on August 8, 2012. Appellant filed his
first PCRA petition on May 19, 2014; the court appointed counsel, who filed a
no-merit letter per Turner/Finley1 and a motion to withdraw as counsel. On
October 31, 2014, the court issued notice of its intent to dismiss, per
Pa.R.Crim.P. 907, and granted counsel’s motion to withdraw. After Appellant
filed a response to the Rule 907 notice on November 21, 2014, the court
dismissed the petition as untimely on December 9, 2014. This Court dismissed
Appellant’s appeal on May 1, 2015, for failure to file a brief.
On April 15, 2016, Appellant filed the current pro se petition (labeled a
petition for writ of habeas corpus), which the court properly treated as a
second PCRA petition, because it raised issues cognizable under the PCRA.
See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for same
purpose). On November 20, 2017, the PCRA court issued Rule 907 notice of
its intent to dismiss; Appellant responded on December 8, 2017. On
December 20, 2017, the court dismissed the petition as untimely filed, with
issues previously litigated. Appellant timely filed a notice of appeal on January
5, 2018, and a court-ordered concise statement of errors complained of on
appeal, per Pa.R.A.P. 1925(b), on January 25, 2018.
____________________________________________
1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
must be filed within one year of the date the underlying judgment became
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at the conclusion of
direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very
limited circumstances to excuse the late filing of a petition; a petitioner
asserting an exception must file a petition within 60 days of the date the claim
could first have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, the judgment of sentence became final on August 8, 2012,
upon expiration of the time to file a petition for writ of certiorari in the United
States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current
PCRA petition on April 15, 2016, which is patently untimely. See 42 Pa.C.S.A.
§ 9545(b)(1). In the petition, Appellant assumes “arguendo” that he should
have filed a PCRA petition, but that no exceptions apply, and a PCRA petition
would be untimely in any event, which is why he styled his current petition as
one for habeas corpus relief. In it, Appellant raises claims of cruel and unusual
punishment along with complaints of ineffective assistance of prior counsel.
Appellant also posits the PCRA, to the extent it supplants or subsumes the
remedy of habeas corpus, is an unconstitutional infringement on the state
right to that relief. The court dismissed the petition as untimely under the
PCRA. The court further noted (1) Appellant’s claims of ineffective assistance
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of his prior counsel and his alleged language difficulties were raised in his prior
PCRA petition; and (2) Appellant’s court-ordered Rule 1925(b) statement was
void for vagueness, so his claims are waived for appeal. We conclude, the
court properly dismissed Appellant’s current petition as untimely. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/18
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