Com. v. Cartagena, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
EDWARD CARTAGENA, :
:
Appellant : No. 3226 EDA 2017
Appeal from the PCRA Order September 5, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001555-2015
BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 13, 2018
Edward Cartagena appeals from the dismissal of his Petition, filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546,
as untimely. We affirm.
On May 26, 2015, Appellant entered a counseled negotiated guilty plea
to three counts of Possession with Intent to Deliver a Controlled Substance
(“PWID”), and one count each of Criminal Use of a Communication Facility,
Person Not to Possess a Firearm, Dealing in Proceeds of Unlawful Activity, and
Possession of a Controlled Substance.1 That same day, the trial court
accepted the plea agreement and sentenced Appellant to the agreed-upon
term of six to twelve years’ incarceration on one count of PWID, and a
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1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a); 18 Pa.C.S. § 6105(a)(1);
18 Pa.C.S. § 5111(a)(1); and 35 P.S. § 780-113(a)(16). The charges arose
from his selling or attempting to sell heroin to an undercover police officer on
three occasions in November and December 2014.
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* Retired Senior Judge assigned to the Superior Court.
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consecutive term of eight years’ probation on the firearms conviction. The
court imposed no further penalty on the remaining convictions.
On June 5, 2015, Appellant sent a pro se letter to the court asking for
reconsideration of his sentence. The court sent Appellant’s letter to his
attorney as required by Pa.R.Crim.P. 576(A)(4). Appellant did not file a
counseled post-sentence motion or a direct appeal. Thus, his Judgment of
Sentence became final on June 25, 2015.2
On July 22, 2016, Appellant filed a pro se PCRA Petition. The court
appointed counsel on August 16, 2016. On September 29, 2016, the court
filed a Notice of Intent to Dismiss the Petition without a hearing pursuant to
Pa.R.Crim.P. 907.
On October 27, 2016, Appellant filed a counseled Response to the Rule
907 Notice, averring that the PCRA court should hold a hearing to establish
that Appellant “was and remained incompetent through the period during
which his right to file a PCRA petition lapsed” and that he “timely filed [his
Petition] within 60 days of becoming sufficiently competent to ascertain the
facts on which his underlying claims are predicated.” Response to Court’s
Notice of Intent to Dismiss, filed 10/27/16, at ¶11.3
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2 42 Pa.C.S. § 9545(b)(3) (“a judgment 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 at the expiration of
time for seeking the review.”).
3The record indicates that on December 8, 2016, Appellant filed a second
Response to the Rule 907 Notice.
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On June 12, 2017, Appellant filed an Amended PCRA Petition. The court
held a hearing, and on June 30, 2017, granted the Petition and reinstated
Appellant’s right to file for post-sentence relief nunc pro tunc. However, the
Commonwealth filed a Motion for Reconsideration, and after holding another
hearing, the trial court dismissed Appellant’s PCRA Petition as untimely on
September 5, 2017.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the lower court err in denying Appellant’s [PCRA] petition
where Appellant filed a timely post-sentence motion pursuant to
the Pennsylvania Rules of Criminal Procedure?
2. Did the lower court err in refusing to treat the document filed by
Appellant in June of 2015 as a timely filed first [PCRA] Petition?
Appellant’s Brief at 4.
We review the denial of PCRA relief for an abuse of discretion.
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). We determine
whether the record supports the PCRA court’s findings and whether its order
is otherwise free of legal error. Id. This Court grants great deference to the
findings of the PCRA court if the record supports them. Commonwealth v.
Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference,
however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d
1190, 1194 (Pa. Super. 2012).
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Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain his 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).
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 at 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 PCRA court
may not address the merits of the issues raised if the petitioner did not timely
file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010).
As noted above, Appellant’s Judgment of Sentence became final on June
25, 2015. In order to be timely, Appellant needed to submit his PCRA Petition
by June 25, 2016. Id. Appellant filed his Petition on July 22, 2016. The PCRA
court properly concluded that Appellant’s Petition is facially untimely.
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)(1)(i)-(iii). Here, Appellant has failed to invoke any of the
timeliness exceptions.
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Rather, Appellant argues that there was a “breakdown in the processes
of the trial court” because (1) his pro se letter was a timely-filed post-sentence
motion and the court took no action, other than to send it to his attorney; and
(2) he was never notified that the “post-sentence motion” had been denied
and that the 30-day time limit for filing his direct appeal had begun to run.
Appellant’s Brief at 13-14. He also contends, in the alternative, that the court
should have treated his pro se letter as a first PCRA petition. Appellant’s
issues garner no relief.
Pursuant to 210 Pa. Code § 65.24, “where a litigant is represented by
an attorney before the Court and the litigant submits for filing a petition,
motion, brief or other type of pleading in the matter, it shall not be accepted
for filing, but noted on the docket and forwarded to counsel of record.” See
also Pa.R.Crim.P. 576(A)(4) (same). In Commonwealth v. Jette, 23 A.3d
1032 (Pa. 2011), our Supreme Court reiterated its “long-standing policy that
precludes hybrid representation.” Id. at 1036. Although Jette involved a
counseled appellant attempting to proceed pro se on appeal, our Supreme
Court has also declared that “there is no constitutional right to hybrid
representation ... at trial[.]” Commonwealth v. Ellis, 626 A.2d 1137, 1139
(Pa. 1993). A pro se motion filed by a represented defendant is “a nullity,
having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.
Super. 2007). Once the court clerk has sent the pro se pleading to the
defendant’s counsel, the court takes no further action on the pro se pleading.
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Jette, supra at 1044. Most relevant here, a pro se filing has no tolling effect.
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (citing
Pa.R.Crim.P. 576 cmt. (“The requirement that the clerk time stamp and make
docket entries of the filings in these cases only serves to provide a record of
the filing, and does not trigger any deadline nor require any response.”)).
Accordingly, contrary to Appellant’s characterization, his pro se letter to
the court was a legal nullity, not a post-sentence motion that tolled his appeal
period. The PCRA court, thus, properly determined that Appellant’s PCRA
Petition filed more than a year after his Judgment of Sentence became final
was facially untimely. Because Appellant did not plead and prove any of the
timeliness exceptions provided in Section 9545(b), the trial court properly
concluded that it lacked jurisdiction to review the merits of his Petition.4
Appellant alternatively argues that the trial court should have treated
his pro se letter as a first PCRA Petition and, thus, his July 22, 2016, as “merely
an extension of the first petition.” Appellant’s Brief at 16. Appellant fails to
cite any relevant authority to support this contention, and completely ignores
well-settled case law that directly contradicts it.
“The PCRA provides petitioners with a means of collateral review, but
has no applicability until the judgment of sentence becomes final.”
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4 We further note that where a plea agreement contains a negotiated
sentence, which is accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of that sentence.
Commonwealth v. Coles, 530 A.2d 453, 458 (Pa. Super. 1994).
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Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002). See
also Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (“A
PCRA petition may only be filed after an appellant has waived or exhausted
his direct appeal rights”). Thus, a “premature petition” filed before the
Judgment of Sentence becomes final “does not constitute a first PCRA
petition.” Kubis, supra at 198 n.4.
Based on the above authority, we decline to characterize Appellant’s
June 5, 2015 pro se letter as a properly filed PCRA Petition. His July 22, 2016
PCRA Petition is, thus, not “merely an extension” of that “petition.” See
Commonwealth v. Robinson, 837 A.2d 1157, 1163 (Pa. 2003) (rejecting
the “extension theory” as it had previously rejected the “amendment theory”).
Accordingly, Appellant’s second issue merits no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/18
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