Com. v. Rivera, C. ( 2016 )

J-S66040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS M. RIVERA
Appellant No. 2109 MDA 2015
Appeal from the PCRA Order November 12, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003202-2012
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 13, 2016
Carlos Rivera appeals from an order dismissing his petition for habeas
corpus, which the lower court properly treated as a petition for relief under
the Post Conviction Relief Act (“PCRA”).1 We affirm.
On January 31, 2013, Rivera pled guilty to simple assault 2 and was
sentenced to 6-24 months’ imprisonment. Rivera did not file a direct appeal.
On September 11, 2015, Rivera filed what he claimed was a habeas
corpus petition claiming that the court improperly computed his offense
gravity score at the time of sentencing. The court appointed PCRA counsel.
On November 6, 2015, counsel filed a “no merit” letter pursuant to
____________________________________________
1
42 Pa.C.S. § 9541 et seq.
2
18 Pa.C.S. § 2701.
1
J-S66040-16
Commonwealth v. Finley, 550 A.2d 214 (Pa.Super.1988), and
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988), and requested leave
to withdraw from the case.
On November 12, 2015, the court granted counsel leave to withdraw
and entered a notice of intent to dismiss without a hearing. On November
23, 2015, Rivera filed a pro se “amended PCRA petition” which repeated his
original claims and also stated that his petition fell within the “newly
discovered evidence” exception to the PCRA’s statute of limitations. On
December 10, 2015, the court dismissed Rivera’s petition.
One week earlier, on December 3, 2015, Rivera filed a notice of
appeal. Pursuant to Pa.R.A.P. 905(a)(5), we treat the appeal as timely filed
on December 10, 2015. See id. (“a notice of appeal filed after the
announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof”).
Both Rivera and the court complied with Pa.R.A.P. 1925.
Rivera alleged the following in his Pa.R.A.P. 1925(b) statement:
1. Defendant’s gravity score was calculated erroneously by court
officials; the court completely disregarded ‘Court Procedure Rule
152,’ relating to the amendment of rules, they ‘altered’ the
gravity score from a 3 to a 5 thus sentencing the defendant to
an excessive sentence, due to the court’s negligence.
a. Defendant points out to the court that how is it possible
for the court to state that in 1-31-13 sentencing
defendants (PSI) were a 5 and this present day a (PSI)
shows that defendant score is a 5? Clearly both erroneous.
How is that possible? It’s not.
-2-
J-S66040-16
2. The court purported to sentence defendant using the
guidelines, but applied them erroneously; making the sentence
illegal and excessive.
3. Defendant’s constitutional rights were violated; as well as his
due process in the court proceedings.
4. Defendant states that there was a ‘conflict of interest’ by
A.D.A. Dugan prosecuting this case due to the fact that her
husband a Reading Police Officer was on the scene, having his
fellow officer been assaulted, causing a very personal vendetta
against the defendant.
Id.Before proceeding to Rivera’s claims, “we must determine if counsel
has satisfied the requirements to be permitted to withdraw from further
representation.” Commonwealth v. Freeland, 106 A.3d 768, 774
(Pa.Super.2014). Competent PCRA counsel must conduct an independent
review of the record before we can authorize counsel’s withdrawal. Id. The
independent review
requires counsel to file a ‘no-merit’ letter detailing the nature
and extent of his review and list[ing] each issue the petitioner
wishes to have examined, explaining why those issues are
meritless. The PCRA court, or an appellate court if the no-merit
letter is filed before it, then must conduct its own independent
evaluation of the record and agree with counsel that the petition
is without merit.
Id. (internal citation omitted).
PCRA counsel must also “serve a copy on the petitioner of counsel’s
application to withdraw as counsel, and must supply to the petitioner both a
copy of the ‘no-merit’ letter and a statement advising the petitioner that . . .
he or she has the right to proceed pro se or with the assistance of privately
-3-
J-S66040-16
retained counsel.” Commonwealth v. Widgins, 29 A.3d 816, 818
(Pa.Super.2011) (quoting Commonwealth v. Friend, 896 A.2d 607(Pa.Super.2006), abrogated in part by Commonwealth v. Pitts, 981 A.2d
875, 876 (Pa.2009)).
Counsel substantially complied with the dictates of Turner/Finley. In
her no-merit letter, counsel provided a summary of the facts and procedural
history of the case with citations to the record, provided citations to relevant
case law, and concluded that the appeal was wholly frivolous. Counsel
asserted in her motion to withdraw that she made a careful and
conscientious review of the record, researched the issues and potential
issues for appeal, and determined that Rivera’s appeal was without merit.
Further, counsel notified Rivera of her withdrawal request and sent him a
letter explaining his right to proceed pro se or with new, privately-retained
counsel to raise any additional points or arguments that he believed had
merit.
Next, we must determine whether Rivera’s PCRA petition 3 was timely.
The timeliness of a PCRA petition implicates the jurisdiction of both this
____________________________________________
3
Although Rivera entitled his original petition as a petition for habeas
corpus, the lower court properly treated it as a PCRA petition, because it
challenges the legality of his sentence, an issue squarely within the confines
of the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vii) (relief available under PCRA
for “the imposition of a sentence greater than the lawful maximum”); see
also 42 Pa.C.S. § 9542 (PCRA subsumes writ of habeas corpus unless PCRA
does not provide potential remedy).
-4-
J-S66040-16
Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 52
(Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law
makes clear that no court has jurisdiction to hear an untimely PCRA
petition.” Id. To “accord finality to the collateral review process[,]” the
PCRA “confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA timebar[.]” Commonwealth v. Watts,
23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,
this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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;
-5-
J-S66040-16
(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). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Rivera’s judgment of sentence became final on Monday, March
4, 2013,4 his deadline for taking a direct appeal to this Court. See 42
Pa.C.S. § 9545(b)(3). Accordingly, he had until March 4, 2014 to file a
timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). He filed the present
PCRA petition on September 11, 2015. Thus, his petition is patently
untimely, and we must determine whether he has pled and proved any of
the exceptions to the PCRA time limitation. See 42 Pa.C.S. § 9545(b)(1)(i)-
(iii).
Rivera fails to satisfy any of these exceptions. Contrary to his
amended PCRA petition, his claim of an improper offense gravity score does
____________________________________________
4
The thirtieth day after sentencing, March 2, 2013, fell on a Saturday, thus
extending the time for appealing to this Court to Monday, March 4, 2013.
See 1 Pa.C.S. § 1908.
-6-
J-S66040-16
not constitute newly discovered evidence (section 9545(b)(1)(ii)), because
all information relating to his sentence was publically available.
Commonwealth v. Taylor, 67 A.3d 1245, 1248-49 (Pa.2013) (matters of
public record are not unknown for purposes of newly discovered evidence
exception to PCRA). Nor does Rivera contend that his sentence implicated
governmental interference or violated a constitutional right that the United
States Supreme Court or Pennsylvania Supreme Court has held to apply
retroactively (sections 9545(b)(1)(1) and (iii)).5
Because Rivera failed to plead and prove any of the statutory
exceptions to the PCRA time limitation, the PCRA court correctly determined
that it lacked jurisdiction to hear this petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2016
____________________________________________
5
Although petitioners cannot waive illegal sentence claims, they must still
raise such claims in a timely PCRA petition. Commonwealth v. Taylor, 5
A.3d 462, 465 (Pa.Super.2013). Rivera failed to do so here.
-7-