Com. v. Zurita, R. ( 2017 )

J-S61015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROLANDO BARBON ZURITA
Appellant No. 1625 EDA 2017
Appeal from the PCRA Order April 26, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0005792-2004
BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 10, 2017
Rolando Zurita appeals pro se from the order, entered in the Court of
Common Pleas of Chester County, dismissing his petition as untimely filed
under the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-46. We
affirm.
On July 25, 2005, Zurita entered an open guilty plea to ten (10)
counts of possession with intent to deliver (PWID) and six (6) counts of
criminal conspiracy. The court sentenced Zurita on December 2, 2005 to
fifteen (15) to thirty (30) years’ imprisonment. Zurita filed a direct appeal,
which this Court dismissed. On October 11, 2006, Zurita filed a pro se PCRA
petition alleging ineffective assistance of counsel. The court appointed
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S61015-17
counsel and, on November 17, 2006, the PCRA court granted Zurita’s
petition seeking leave to file a direct appeal nunc pro tunc. Zurita filed a
notice of appeal on December 13, 2006; one month later, after consultation
with counsel, he withdrew his appeal and, instead, filed a second PCRA
petition. On March 6, 2009, the PCRA court granted Zurita’s petition,
vacated his judgment of sentence, allowed him to withdraw his guilty plea,
reinstated the withdrawn charges,1 and directed the court administrator to
list the case for trial.
On May 15, 2009, Zurita again entered a guilty plea, this time
negotiated, and the court sentenced him to an aggregate term of
imprisonment of fourteen (14) to thirty (30) years’ imprisonment. No direct
appeal was filed.
Five years later, on June 11, 2014, Zurita filed a pro se PCRA petition.
The court appointed counsel, and, thereafter, counsel was granted leave to
withdraw under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 13,
2015, after the court had issued a Pa.R.Crim. 907 notice of intent to dismiss
and Zurita had filed a response, the court dismissed Zurita’s petition as
untimely. On appeal, this Court affirmed. Commonwealth v. Zurita, 134
____________________________________________
1In exchange for the open plea, the Commonwealth had agreed to withdraw
numerous charges.
-2-
J-S61015-17
A.3d 504 (unpublished memorandum, filed November 25, 2015).2 On
September 23, 2016, the Pennsylvania Supreme Court denied allowance of
appeal. Commonwealth v. Zurita, 158 A.2d 72 (Pa. 2016).
Before us now is Zurita’s second petition, filed on February 7, 2017,
which he captioned a petition for habeas corpus, and which the PCRA court
properly treated as a PCRA petition. See 42 Pa.C.S.A. § 9542 (PCRA is sole
means by which defendant may obtain collateral relief); see also
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)
(recognizing courts are to construe all motions defendant files after
judgment of sentence has become final as PCRA petitions);
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)
(“[T]he [PCRA] provides the sole means for obtaining collateral review, and
____________________________________________
2 Zurita argued in that petition that his sentence was illegal under Alleyne
v. United States, 133 S. Ct. 2151 (2013) (holding any fact that increases
mandatory minimum sentence must be submitted to jury). We noted that
Alleyne was decided on June 17, 2013, almost one year before Zurita filed
his June 11, 2014 petition; thus, Zurita failed to file his petition within 60
days of the Alleyne decision. Therefore, it was untimely. See 42 Pa.C.S.A.
§ 9545(b)(2); see also Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 783 (Pa. 2000) (“[W]hen a PCRA petition [is] entitled to one of the
[section 9545(b)(1)] exceptions, but [is] not filed within 60 days of the date
that the claim could have been first brought, the PCRA court has no power to
address the substantive merits of a petitioner’s PCRA claim.”);
Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001) (with regard
to after-recognized constitutional right, this Court has held that sixty-day
period begins to run upon date of underlying judicial decision).
-3-
J-S61015-17
. . . any petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.”). The PCRA court determined Zurita's petition
was untimely and dismissed it by order dated April 4, 2017. This appeal
followed. Zurita raises one issue: whether the PCRA court abused its
discretion in dismissing the petition as untimely where a defect in the
criminal information vitiates the judgment, eliminating timeliness as a bar?
The PCRA statute directs that any PCRA petition, including a second or
subsequent petition, must be filed within one year of the date the underlying
judgment becomes final unless the petitioner proves an exception. 42
Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes 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.” 42 Pa.C.S.A. § 9545(b)(3). Further, any
petition claiming an exception under § 9545(b)(1) must be filed within 60
days of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2). “[T]he PCRA’s timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting
Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).
Here, Zurita was sentenced on May 15, 2009. No direct appeal was
filed. His judgment of sentence, therefore, became final on June 15, 2009.
Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Absent an exception, Zurita
had one year to file his petition, or until June 15, 2010. 42 Pa.C.S.A. §
-4-
J-S61015-17
9545(b)(1). Zurita asserts that the criminal information was defective in
that it failed to specify the specific dates or essential elements of the crimes
with which he was charged. However, he does not assert an exception to
the time bar under section 9545(b)(1).3
Because Zurita failed to timely file his petition and failed to plead and
prove an exception to the time bar under section 9545(b)(1), the PCRA court
did not have jurisdiction to address his claims. We conclude, therefore, that
the PCRA court properly dismissed Zurita’s petition as untimely.4
____________________________________________
3 Section 9545(b) provides:
(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.A. § 9545(b)(1)(i)-(iii).
4 To the extent that Zurita attempts to frame his claim as a violation of his
constitutional right to due process or as one affecting the jurisdiction of the
(Footnote Continued Next Page)
-5-
J-S61015-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
(Footnote Continued) _______________________
lower court, we note that even had Zurita pled and proved an exception to
the time bar, the claim is waived. See 42 Pa.C.S.A. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”).
-6-