Com. v. Cintora, O. ( 2017 )

J-S56037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OSCAR ALCANTAR CINTORA,
Appellant No. 1283 EDA 2017
Appeal from the PCRA Order March 23, 2017
in the Court of Common Pleas of Chester County
Criminal Division at No.: CP-15-CR-0001355-1994
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 06, 2017
Appellant, Oscar Alcantar Cintora, appeals pro se from the dismissal of
his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the background of this case from the PCRA court’s March 23,
2017 order, and our independent review of the certified record. The criminal
charges against Appellant arose from an incident in March 1994 wherein he
and his brother burglarized a home, stabbed a male occupant to death, and
tied up and terrorized the murder victim’s mother and sister. On February
13, 1995, Appellant pleaded guilty to second-degree murder, burglary, and
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* Retired Senior Judge assigned to the Superior Court.
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two counts of robbery. In exchange, the Commonwealth withdrew multiple
charges, including first-degree murder. The same day, the trial court
sentenced Appellant to a term of life without the possibility of parole for
murder of the second degree, and three concurrent terms of not less than
five nor more than ten years’ on the burglary and robbery charges.
Appellant did not file a direct appeal.
Between April 1995 and June 2010, Appellant filed three PCRA
petitions, which the court denied.1 This Court affirmed the denials.
On August 7, 2012,2 Appellant filed his fourth pro se PCRA petition in
which he argued that the holding of Miller v. Alabama, 567 U.S. 460
(2012),3 applied to him because he was under twenty-five at the time of the
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1 The Commonwealth also represents the following: Appellant filed a
petition for a federal writ of habeas corpus on June 24, 2013, and an
application to file a second petition on January 27, 2017. (See
Commonwealth’s Brief, at 12-13). The documents requested the same relief
as that in the fourth and fifth PCRA petitions. (See id. at 12-13). The
United States Court of Appeals for the Third Circuit denied the prayers for
relief on February 27, 2014 and February 15, 2017. (See id. at 13).
2 Appellant is pro se and incarcerated. Therefore, we deem his documents
filed as of when they are dated. See Commonwealth v. Patterson, 931
A.2d 710, 714 (Pa. Super. 2007).
3 In Miller, the United States Supreme Court “held that mandatory life
imprisonment without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.” Miller, supra at 479. On January 25, 2016, the
United States Supreme Court held that the holding of Miller announced a
substantive rule that is to be applied retroactively. See Montgomery v.
Alabama, 132 S. Ct. 718, 736 (2016).
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murder, and he therefore had an “immature brain.” (PCRA Petition,
8/07/12, at 1). On November 9, 2012, the PCRA court dismissed the
petition after providing Appellant with appropriate notice. See Pa.R.Crim.P.
907(1). This Court affirmed the PCRA court’s dismissal on June 28, 2013,
and our Supreme Court denied Appellant’s review request. (See
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013)).
On January 18, 2017, Appellant filed his fifth PCRA petition in which he
pleaded that Miller applied to him because he had discovered that he was
under eighteen at the time of the murder. The PCRA court issued notice of
its intent to dismiss the petition without a hearing on February 27, 2017.
See Pa.R.Crim.P. 907(1). Appellant responded on March 12, 2017, and the
court dismissed the petition on March 23, 2017. Appellant timely appealed.4
Appellant raises two questions for this Court’s review:
1. Whether the PCRA [c]ourt erred as a matter of law in
denying relief to [A]ppellant’s untimely petition, where he
asserts that the recently obtained birth certificate, which proves
he was [seventeen] years old at the time he committed his
offense, for which he is serving a life sentence, entitles him for
relief in light of Miller []?
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4 Pursuant to the PCRA court’s order, Appellant filed a timely statement of
errors complained of on April 28, 2017. The court filed an opinion on May 4,
2017 in which it directed this Court to its March 23, 2017 order and February
27, 2017 Rule 907 notice for the reasons supporting its decision. See
Pa.R.A.P. 1925.
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2. Whether the Miller[] claim raised in the instant appeal has
been previously litigated or waived?
(Appellant’s Brief, at 2) (citation formatting provided).
Before we are able to consider the merits of Appellant’s claims on
appeal, we must determine whether the PCRA court properly determined
that his petition was untimely with no exception pleaded and proven, and
that therefore it did not have jurisdiction to decide its merits. (See Order,
3/23/17, at 2 n.1; Rule 907 Notice, at unnumbered page 2 n.1).
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 record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error. This Court may affirm a PCRA court’s decision on any
grounds if the record supports it. We grant great deference to
the factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Further, where
the petitioner raises questions of law, our standard of review is
de novo and our scope of review is plenary.
Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal
denied, 64 A.3d 631 (Pa. 2013) (citations omitted).
All PCRA petitions must be filed within one year of the date
upon which the judgment of sentence became final, unless one
of the statutory exceptions set forth in 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii) applies. The petitioner bears the burden to
plead and prove an applicable statutory exception. If the
petition is untimely and the petitioner has not pled and proven
an exception, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider
the merits of the petition.
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Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017)
(citation omitted). “In addition, any petition attempting to invoke one of
these exceptions ‘shall be filed within 60 days of the date the claim could
have been presented.’ 42 Pa.C.S.A. § 9545(b)(2).” Id.
In the case sub judice, Appellant’s judgment of sentence became final
on March 15, 1995, at the expiration of the time for him to seek review of
his judgment of sentence in this Court. See 42 Pa.C.S.A. § 9545(b)(3).
Therefore, he had one year from that date to file a petition for collateral
relief unless he pleaded and proved that a timing exception applied. See id.
at § 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed nearly
twenty-two years later, on January 23, 2017, is untimely on its face unless
he pleads and proves one of the statutory exceptions to the time-bar.
Section 9545 of the PCRA provides only three exceptions that allow for
review of an untimely PCRA petition: (1) the petitioner’s inability to raise a
claim because of governmental interference; (2) the discovery of previously
unknown facts that would have supported a claim; and (3) a newly-
recognized constitutional right. See id. When a petition is filed outside the
one-year time limit, petitioners must plead and prove the applicability of one
of the three exceptions to the PCRA timing requirements. See
Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If
the petition is determined to be untimely, and no exception has been pled
and proven, the petition must be dismissed without a hearing because
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Pennsylvania courts are without jurisdiction to consider the merits of the
petition.”) (citation omitted).
Here, Appellant claims the applicability of all three of the statutory
exceptions. (See Appellant’s Brief, at 5). However, he admits that he
cannot avail himself of the newly recognized constitutional right exception
based on Miller because it violates section 9545(b)(2). (See id. at 9).
Therefore, recognizing that his petition is untimely, Appellant candidly
observes that “another exception to the PCRA timeliness requirements must
apply to [the] petition[,]” and “[f]or that, [he] pleaded [] ‘newly discovered
facts’ [], and/or [] ‘governmental interference’ [].” (Id. at 5). Appellant’s
attempt to avail himself of these exceptions fails.
[To] fall within the governmental interference exception, the
petitioner must plead and prove the failure to previously raise
the claim was the result of interference by government officials,
and the information could not have been obtained earlier with
the exercise of due diligence. Section 9545(b)(1)(ii)’s
[previously unknown facts] exception requires the facts upon
which the [underlying] claim is predicated were not previously
known to the petitioner and could not have been ascertained
through due diligence. . . . [T]he exception set forth in
subsection (b)(1)(ii) does not require any merits analysis of the
underlying claim. Rather, the exception merely requires that the
facts upon which such a claim is predicated must not have been
known to appellant, nor could they have been ascertained by
due diligence.
Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.
denied, 555 U.S. 916 (2008) (citations and quotation marks omitted;
emphasis added).
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In this case, Appellant argues that he had mistakenly believed he was
eighteen at the time that he murdered the victim in this case, but he
discovered the fact that he actually was seventeen when his mother
obtained his Mexican birth certificate in 2016. (See Appellant’s Brief, at 8-
11). However, this assertion is belied by Appellant’s admission that he knew
that the identification found on his person at the time of his arrest in 1994
was “false, and [was] based [on] inaccurate or incomplete information for
the purpose of finding employment.” (Id. at 8-9; see also id. at 12).
Therefore, even assuming arguendo that Appellant did not know his precise
birthdate, we conclude that he failed to exercise due diligence to discover it
until over twenty years after his arrest. See Abu-Jamal, supra at 1268.
Hence, Appellant has failed to plead and prove the previously unknown fact
exception to the PCRA time-bar. See id.
Also, Appellant is not due relief on his governmental interference
argument. Pursuant to Pennsylvania Rule of Appellate Procedure 2119, an
appellant is required to provide pertinent law and discussion thereof. See
Pa.R.A.P. 2119(a)-(b). However, Appellant fails to provide any relevant law
to support his claim that “the Commonwealth was obligated to notify the
Mexican Consulate” to verify the personal information contained in the
documents he possessed at the time of his arrest. (Appellant’s Brief, at 12).
Therefore, his argument is waived. See Pa.R.A.P. 2101; Pa.R.A.P. 2119(a)-
(b); Commonwealth v. Rayner, 153 A.3d 1049, 1062 (Pa. Super. 2016),
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appeal denied, 2017 WL 2957885 (Pa. filed July 11, 2017) (finding claim
waived for failure to provide pertinent authority).
In addition, we agree with the PCRA court’s finding that his argument
would not merit relief. The court explained:
[T]here is nothing in the record to indicate that the
Commonwealth knew or should have known that [Appellant’s]
birthdate was anything other than March 17, 1975, the date
stated on the documents in [his] possession at the time of his
arrest. In addition, [Appellant] testified in court that he was
[nineteen] years old when he accepted the plea agreement. He
also acknowledged he was [nineteen] years old in the written
guilty plea colloquy. Accordingly, the Commonwealth was under
no duty “to verify with the appropriate authorities [his] true and
correct date of birth.” If [Appellant] was, in fact, under
[eighteen] when the crimes in question were committed, he
should have raised this issue prior to accepting the plea. The
Commonwealth did not interfere with [Appellant’s] ability to
raise this issue sooner. Accordingly, the government
interference exception does not apply to this case.
(Order, 3/23/17, at 2 n.1).
As previously stated, we agree with the court. Accordingly, because
Appellant has failed to plead and prove the applicability of an exception to
the timeliness requirements of the PCRA, the court properly dismissed his
petition as untimely. Rykard, supra at 1183; Johnston, supra at 1126.
Appellant’s issue lacks merit.5
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5 Because it is not material to our disposition, we need not address
Appellant’s second issue, in which he claims that the PCRA court erred in
making its alternative finding that his claim was previously litigated or
waived where he raised a different theory under Miller in his fourth PCRA
(Footnote Continued Next Page)
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
(Footnote Continued) _______________________
petition. (See Appellant’s Brief, at 3; see also Rule 907 Notice, at
unnumbered page 4 n.1).
However, we briefly note the Commonwealth’s representation that
Appellant’s issue was previously litigated in the United States Third Circuit
Court of Appeals. (See Commonwealth’s Brief, at 13-14). We recognize
that this Court has observed that “an issue can be previously litigated in a
federal collateral attack” for purposes of the waiver provision of the PCRA.
Commonwealth v. Burkett, 5 A.3d 1260, 1271 (Pa. Super. 2010).
Nevertheless, because the documents filed in federal court are not in the
certified record, we are unable to review whether Appellant pleaded the
precise argument he now raises. See Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008), appeal denied, 972 A.2d 521 (Pa. 2009) (“This
Court does not rely on items dehors the record[.]”). Hence, we make no
finding as to the Commonwealth’s argument.
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