Com. v. Martinez, J. ( 2018 )

J-A10045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE MARTINEZ :
:
Appellant : No. 2861 EDA 2017
Appeal from the PCRA Order July 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006386-2009
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.
MEMORANDUM BY RANSOM, J.: FILED MAY 23, 2018
Appellant, Jorge Martinez, appeals pro se from the order entered
July 25, 2017, denying as untimely his second petition for collateral relief filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. See PCRA Court Opinion (PCO),
11/6/17, at 1-2, 4-5. For the convenience of the reader, we briefly note that,
in 2008, Appellant shot and killed Nicholas Cruz. During Appellant’s trial, the
Commonwealth presented the testimony of an eyewitness to the murder, a
witness who saw Appellant fleeing the scene, a ballistics expert, and the
medical examiner. A jury found Appellant guilty of murder of the first degree
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* Retired Senior Judge assigned to the Superior Court.
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and possession of instrument of crime,1 and Appellant was sentenced to life
imprisonment.2 After the trial court denied his post-sentence motions,
Appellant appealed to this Court, which affirmed the judgment of sentence.
Appellant then petitioned for allowance of appeal to the Supreme Court of
Pennsylvania, which denied his petition on June 26, 2012. Commonwealth
v. Martinez, 43 A.3d 529 (Pa. Super. 2012) (unpublished memorandum),
appeal denied, 47 A.3d 846 (Pa. 2012).
Appellant filed his first PCRA petition in July 2012 and amended it in May
2014. The PCRA court dismissed the first PCRA petition in May 2015, and
Appellant appealed to this Court, which affirmed in March 2016. Appellant
petitioned for allowance of appeal to the Supreme Court of Pennsylvania,
which denied his petition in August 2016. Commonwealth v. Martinez, 144
A.3d 189 (Pa. Super. 2016) (unpublished memorandum), appeal denied, 145
A.3d 724 (Pa. 2016).
Appellant filed the instant PCRA petition on September 15, 2016. This
PCRA petition alleged ineffective assistance of counsel, prosecutorial
misconduct, a “miscarriage of justice,” and “manifest constitutional errors,”
all of which “undermined the truth determining process to such a degree that
they require reversal.” PCRA Pet., 9/15/16, at 1. However, the PCRA petition
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1 18 Pa.C.S. § 2502(a) and § 907(a), respectively.
2 The Commonwealth never sought the death penalty for Appellant.
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made no claim of governmental interference or other improper obstruction by
government officials and made no challenge to the jury or sentencing
procedures. In November 2016, without seeking the PCRA court’s leave,
Appellant filed an amended petition, alleging that, due to his conviction for
murder of the first degree, his sentence should have been determined by the
jury and not the judge. Am. PCRA Pet., 11/30/16, at 26, 31. Appellant’s
PCRA petition was dismissed as untimely by the PCRA court in July 2017. This
appeal followed. The PCRA court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and
Appellant complied. The PCRA court issued a responsive opinion.
Appellant now raises the following issues for our review:
[1.] Is Your Appellant Entitled To Post-Conviction Relief In The
Form Of Remand For An Evident[ia]ry Hearing Since The Court(s)
Below Rendered Constructional Error(s) During Your Appellant’s
Trial And Sentencing Hearing?
[2.] Does [sic] Your Appellant’s Claims Raised Within The
Pertinent PCRA PETITION: Lack Of Statutory Authorization; Lack
Of Subject Matter Jurisdiction; And Constructional Error, Have
Been Recognized By Our Courts As Unwaiverable Claims, Which
Can Be Challenged (Reviewable Sua Sponte) At Any Time During
Petitioner’s Incarceration?
Appellant’s Brief at 7 (PCRA court’s answers omitted) (capitalization and
underlining in original).
In reviewing an appeal from the denial of PCRA relief, “this Court is
limited to ascertaining whether the evidence supports the determination of
the PCRA court and whether the ruling is free of legal error.” Commonwealth
v. Andrews, 158 A.3d 1260, 1263 (Pa. Super. 2017) (citation omitted).
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The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final, unless the petition alleges and the petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).3 Here, the PCRA
court concluded that it lacked jurisdiction over Appellant’s second petition,
because the petition was untimely and because Appellant failed to satisfy an
exception to the PCRA’s time bar.
Appellant’s sentence became final on September 24, 2012, ninety days
after the Supreme Court of Pennsylvania denied Appellant’s petition for
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3 The three exceptions to the timeliness requirement are:
(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.
42 Pa.C.S. § 9545(b)(1).
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allowance of appeal on June 26, 2012. U.S.Sup.Ct.R. 13. Appellant thus had
one year thereafter to file a PCRA petition – i.e., until September 24, 2013.
42 Pa.C.S. § 9545(b)(1). Appellant filed the current petition on
September 15, 2016, almost three years late. Hence, Appellant’s petition was
patently untimely.
Appellant attempts to circumvent the time-bar by asserting that he is
entitled to one of the exceptions to the time-bar – specifically, the
“governmental interference” exception, 42 Pa.C.S. § 9545(b)(1)(i).
Appellant’s Brief at 13. Appellant argues that the fact that the trial court
dismissed the jury immediately after the recording of its verdict constitutes
governmental interference. Appellant maintains that, since he was convicted
of murder of the first degree, the jury and not the judge should have
determined his sentence. Id. at 14 (citing 42 Pa.C.S. § 9711(a)(1)).
However, Appellant did not raise this exception in his PCRA petition.
“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.” Pa.R.A.P. 302(a). Appellant has therefore failed to
preserve this argument by not including it in his PCRA petition.
Although Appellant filed an amended PCRA petition, we cannot consider
any arguments raised therein, because Appellant did not receive – nor even
seek -- the PCRA court’s permission to file an amended petition. A PCRA
petitioner may not raise new claims by merely supplementing a pending PCRA
without court authorization; failure to obtain leave of the PCRA court waives
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such claims. Commonwealth v. Mason, 130 A.3d 601 (Pa. 2015). Thus,
Appellant’s amended PCRA petition failed to preserve his argument as to why
his petition allegedly qualifies for an exception to the PCRA’s jurisdictional
timeliness requirements.
Accordingly, as Appellant’s second PCRA petition was untimely, this
Court lacks jurisdiction and cannot consider any of his remaining challenges
on appeal. Hernandez, 79 A.3d at 651. Having discerned no abuse of
discretion or error of law, we affirm the order below.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/18
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