Com. v. Adorno-Martinez, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARIO ADORNO-MARTINEZ,
Appellant No. 3467 EDA 2016
Appeal from the PCRA Order October 21, 2016
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0005089-2005
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 19, 2017
Appellant, Mario Adorno-Martinez, appeals pro se from the October 21,
2016 order denying his second petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record. On May 15, 2006, Appellant pleaded guilty to
rape of a child, corruption of minors, and endangering the welfare of a
child.1 The court deferred sentencing until the Sexual Offender Assessment
Board determined Appellant’s sexually violent predator status. On
September 7, 2006, the trial court sentenced Appellant to an aggregate term
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*
Retired Senior Judge assigned to the Superior Court.
1
See 18 Pa.C.S.A. §§ 3121(c), 6301, and 4304, respectively.
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of not less than ten nor more than twenty-five years of incarceration, and
found that Appellant is a sexually violent predator. This Court affirmed the
judgment of sentence on July 19, 2007. (See Commonwealth v. Adorno-
Martinez, 932 A.2d 248 (Pa. Super. 2007) (unpublished memorandum)).
Appellant did not petition our Supreme Court for an allowance of appeal.
On June 9, 2008, Appellant filed his first PCRA petition. The PCRA
court appointed counsel, who filed a Turner/Finley “no-merit” letter and
petition to withdraw as counsel.2 On July 15, 2009, the PCRA court
dismissed Appellant’s first petition and granted counsel’s petition to
withdraw. On February 25, 2010, this Court quashed Appellant’s appeal.
Appellant did not petition our Supreme Court for an allowance of appeal.
On July 29, 2016, Appellant, pro se, filed the instant second PCRA
petition. On September 22, 2016, the PCRA court gave notice of its intent to
dismiss the petition. See Pa.R.Crim.P. 907(1). Appellant objected to the
notice of intent to dismiss. On October 21, 2016, the court entered an order
dismissing Appellant’s petition as untimely. This timely appeal followed. 3
Appellant raises four questions for our review:
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2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
Pursuant to the PCRA court’s order, Appellant filed his concise statement of
matters complained of on appeal on December 6, 2016. The PCRA court
entered its opinion on December 20, 2016, in which it relied on its October
21, 2016 order dismissing the petition and the September 22, 2016 order of
intent to dismiss. See Pa.R.A.P. 1925.
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1. Whether [A]ppellant’s sentence is illegal and
unconstitutional[?]
2. Whether [A]ppellant[’]s charge 3121(c), 6301, and 4304 is
illegal and void because the sentencing statute 9718 was found
to be void and unenforceable[?]
3. Whether [A]ppellant should have been granted relief due to
the common plea court[’s] ability to correct an illegal sentence
where no statutory authorization exists[?]
4. Is [A]ppellant’s sentence valid as it stands?
(Appellant’s Brief, at 4) (some capitalization omitted).
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted).
We begin by addressing the timeliness of Appellant’s petition.
The PCRA provides eligibility for relief in conjunction with
cognizable claims, . . . and requires petitioners to comply with
the timeliness restrictions. . . . [A] PCRA petition, including a
second or subsequent petition, must be filed within one year of
the date that judgment becomes final. A judgment becomes
final for purposes of the PCRA 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.
It is well-settled that the PCRA’s time restrictions are
jurisdictional in nature. As such, this statutory time-bar
implicates the court’s very power to adjudicate a controversy
and prohibits a court from extending filing periods except as the
statute permits. Accordingly, the period for filing a PCRA
petition is not subject to the doctrine of equitable tolling;
instead, the time for filing a PCRA petition can be extended only
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by operation of one of the statutorily enumerated exceptions to
the PCRA time-bar.
The exceptions to the PCRA time-bar are found in Section
9545(b)(1)(i)–(iii) (relating to governmental interference, newly
discovered facts, and newly recognized constitutional rights),
and it is the petitioner’s burden to allege and prove that one of
the timeliness exceptions applies. Whether a petitioner has
carried his burden is a threshold inquiry that must be resolved
prior to considering the merits of any claim. . . .
Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016)
(quotation marks and citations omitted).
Here, Appellant’s judgment of sentence became final on August 18,
2007, when he declined to petition our Supreme Court for an allowance of
appeal. Therefore, Appellant had until August 18, 2008, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because he filed the instant
petition on July 29, 2016, it is untimely on its face, and the PCRA court
lacked jurisdiction to review it unless he pleaded and proved one of the
statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Section 9545 of the PCRA provides only three limited exceptions that
allow for review of an untimely PCRA petition:
(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
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this section and has been held by that court to apply
retroactively.
Id.
Any petition invoking an exception must “be filed within [sixty] days of
the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
“If the [PCRA] petition is determined to be untimely, and no exception has
been pled and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.
Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Here, Appellant claims the benefit of the newly recognized and
retroactively applied constitutional right exception at 42 Pa.C.S.A. §
9545(b)(1)(iii). (See Appellant’s Brief, at 11-18). Specifically, he alleges
that the United States Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013) (holding that any fact that, by law, increases
penalty for crime must be found beyond reasonable doubt by fact finder),
rendered his sentence illegal. (See id.). We disagree.
Appellant filed the instant PCRA petition on July 29, 2016, well over
sixty-days after June 17, 2013, the date that Alleyne was decided. See 42
Pa.C.S.A. § 9545(b)(2). Therefore his petition does not comply with the
PCRA’s rule that petitions invoking an exception to the time-bar must be
filed within sixty days of the date that the claim could have been presented.
See id.
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Furthermore, “a new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States Supreme Court or the
Pennsylvania Supreme Court specifically holds it to be retroactively
applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266,
271 (Pa. Super. 2016) (citation omitted). Neither Court has held that
Alleyne is applied retroactively. Rather, our Supreme Court has specifically
held “that Alleyne does not apply retroactively to cases pending on
collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016).
In sum, we conclude Appellant has not met his burden of proving that
his untimely PCRA petition fits within one of the three exceptions to the
PCRA’s time-bar. See Robinson, supra at 185–86. Accordingly, we affirm
the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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