Com. v. Ramos, J. ( 2017 )

J-S57016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JORGE LUIS RAMOS-AYALA
Appellant No. 1974 EDA 2016
Appeal from the PCRA Order dated June 8, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0002721-2012
BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED DECEMBER 22, 2017
Appellant Jorge Luis Ramos-Ayala appeals pro se from the order
dismissing his second petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.
This Court previously summarized the factual and procedural history of
this case as follows:
Appellant was arrested and charged with numerous counts
related to corrupt organizations and possession and delivery of
heroin. The Commonwealth offered Appellant a plea bargain,
which included a minimum of 40 months of incarceration, but no
limit on the maximum sentence. Appellant rejected the offer and
proceeded to a bench trial. Appellant was convicted on all counts
and sentenced to an aggregate term of seven-and-a-half to
fifteen years’ incarceration. Appellant did not file a direct appeal,
but on September 13, 2013, Appellant timely filed a pro se PCRA
petition.
Commonwealth v. Ramos-Ayala, 118 A.3d 452 (Pa. Super. 2015)
(unpublished memorandum). The PCRA court appointed counsel, who filed a
J-S57016-17
Turner/Finley1 “no merit” letter on March 24, 2014. On May 12, 2014, the
PCRA court dismissed Appellant’s first PCRA petition. Appellant timely
appealed and this Court affirmed the dismissal on January 23, 2015.
Appellant did not petition for allowance of an appeal with the Pennsylvania
Supreme Court.
Appellant filed the underlying PCRA petition, his second, on April 12,
2016. On April 28, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of
its intent to dismiss the petition as untimely. On June 8, 2016, the PCRA
court dismissed the petition. Appellant filed a timely pro se appeal on
June 29, 2016. Appellant presents three issues:
1. Does [A]ppellant’s newly discovered evidence satisfy [the]
timeliness exception under 42 Pa.C.S.A. § 9545(b)(1)(ii)?
2. Is [the] mandatory minimum sentencing statute 18
Pa.C.S. § 7508 facially unconstitutional, and as-applied to
[A]ppellant, pursuant to Alleyne v. United States?
3. Does [A]ppellant’s aggregated sentence warrant
correction, now that his prior drug conviction which singularly
accounted for [A]ppellant’s prior record score pursuant [to] 204
Pa. Code § 303.7, and triggered mandatory minimum sentence
enhancement under 18 Pa.C.S. § 7508, was set aside on appeal?
Appellant’s Brief at 7.
We may not consider Appellant’s first issue, in which, for the first time,
Appellant argues that his petition falls within an exception to the PCRA’s
time bar based on newly discovered evidence of criminal wrongdoing by
____________________________________________
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
-2-
J-S57016-17
Philadelphia police officers. Appellant’s Brief at 14. Appellant did not raise
this issue in his petition filed on April 12, 2016, although he states that the
officers were arrested in July of 2014. See id. “We have stressed that a
claim not raised in a PCRA petition cannot be raised for the first time on
appeal.” Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004).
Further, an appellant cannot prove an exception to the PCRA time bar where
“information was publicly available for years . . . [and] these facts were
easily discoverable and in the public record for longer than 60 days before
the petition was filed.” Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa.
2012).
Appellant did raise his remaining two issues in his petition. When
reviewing the propriety of an order denying PCRA relief, this Court is limited
to determining whether the evidence of record supports the conclusions of
the PCRA court and whether the ruling is free of legal error.
Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA
court’s findings will not be disturbed unless there is no support for them in
the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.
Super.), appeal denied, 95 A.3d 277 (Pa. 2014).
In addition, a PCRA petition must be timely. To be timely, it must be
filed within one year of the date the petitioner’s judgment of sentence
became 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
-3-
J-S57016-17
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). However, an untimely petition may be considered when the
petition alleges, and the petitioner proves, that one of the three limited
exceptions to the time for filing the petition set forth at 42 Pa.C.S.
§ 9545(b)(1) is met. That provision states:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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). A petition invoking one of these exceptions must
be filed within sixty days of the date the claim could first have been
presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to proceed
under an exception to the PCRA’s one-year filing deadline, “the petitioner
must plead and prove specific facts that demonstrate his claim was raised
-4-
J-S57016-17
within the sixty-day time frame” under Section 9545(b)(2).
Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).
Whether a PCRA petition is timely is a question of law. This Court’s
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). It is well
settled that “[t]he filing mandates of the PCRA are jurisdictional in nature
and are strictly construed.” Id. Consequently, “[a]n untimely petition
renders this Court without jurisdiction to afford relief.” Id.Here, Appellant’s judgment of sentence was entered on August 30,
2013. Appellant did not file a direct appeal; as a result, his judgment of
sentence became final 30 days later, on Monday, September 30, 2013.
Appellant had to file his PCRA petition by September 30, 2014 for it to be
timely. 42 Pa.C.S. § 9545(b)(1). Because Appellant filed the underlying
petition on April 12, 2016, we agree with the PCRA court that the petition is
untimely. See PCRA Court Order, 4/28/16, at 3 (unpaginated).
The PCRA court determined that it was without jurisdiction to review
Appellant’s claims because Appellant failed to prove an exception to the
PCRA’s time bar. The PCRA court stated:
The facts of record fail to support a claim that any of the
exceptions [to the PCRA time bar] appl[y]. No facts or
averments indicate that petitioner’s failure to raise the claim of
illegal sentence[ing] previously was the result of interference by
government officials, hence the exception established by 42
Pa.C.S. § 9545(b)(1)(i) does not apply. The record indicates
that the facts upon which the claim is based were known to the
-5-
J-S57016-17
petitioner, hence the exception established by 42 Pa.C.S.
§ 9545(b)(1)(ii) does not apply.
Nor is the right asserted a constitutional right that was recently
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania and held by that court to apply
retroactively, hence the exception established by 42 Pa.C.S. §
9545(b)(1)(iii) does not apply. To the extent petitioner inartfully
intended to raise that exception by citing Alleyne [v. United
States, 133 S. Ct. 2151 (2013),] and Montgomery v.
Louisiana[, 136 S. Ct. 718 (2016], those cases fail to support
the invocation of the exception. Alleyne has not been held to
apply retroactively, and Montgomery v. Louisiana, which
pertains to the lawfulness of statutorily-mandated sentences of
life imprisonment without parole for juvenile defendants, is
inapposite to this case because [Appellant] was not a juvenile
when sentenced, nor was he sentenced to serve life
imprisonment without parole.
[Appellant’s] sentencing claim is untimely as it is pled, and the
petition cannot be amended to state a timely claim.
PCRA Court Order, 4/28/16, at 4, ¶¶17, 18 and 19 (unpaginated).
We are constrained to agree. In Alleyne, the United States Supreme
Court held that “facts that increase mandatory minimum sentences must be
submitted to the jury” and found beyond a reasonable doubt. Alleyne v.
United States, 133 S. Ct. 2151, 2163 (2013). The Pennsylvania Supreme
Court subsequently held that Alleyne does not apply retroactively “to
attacks upon mandatory minimum sentences advanced on collateral review.”
Commonwealth v. Washington, 142 A.3d 810, 811 (Pa. 2016). Appellant
was convicted on June 6, 2013 (11 days prior to Alleyne being decided on
June 17, 2013), but was not sentenced until August 30, 2013. The law is
“settled that Alleyne does not invalidate a mandatory minimum sentence
-6-
J-S57016-17
when presented in an untimely PCRA petition.” Commonwealth v. Ruiz,
131 A.3d 54, 58 (Pa. Super. 2015) (citing Commonwealth v. Miller, 102
A.3d 988 (Pa. Super. 2014)). As Appellant did not timely raise his Alleyne
issue, he cannot overcome the one-year timeliness requirement of the PCRA,
and the record thus supports the determination of the PCRA court. See
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“[a]lthough [the]
legality of [a] sentence is always subject to review within the PCRA, claims
must still first satisfy the PCRA’s time limits or one of the exceptions
thereto”). Based on the foregoing, the trial court lacked jurisdiction to
consider Appellant’s untimely petition, and we thus affirm the order denying
relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2017
-7-