Com. v. Serrano, R. ( 2021 )

J-S14022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUBEN SERRANO :
:
Appellant : No. 1281 MDA 2020
Appeal from the PCRA Order Entered September 16, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005147-2002
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JUNE 22, 2021
Appellant, Ruben Serrano, appeals pro se from the September 16, 2020
Order that dismissed as untimely his third Petition filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Because Appellant’s
PCRA Petition was patently untimely and Appellant has failed to plead and
prove an exception to the PCRA time bar, we affirm the PCRA court’s dismissal.
A detailed factual and procedural history is unnecessary to our
disposition. Briefly, on May 12, 2003, a jury convicted Appellant of Murder of
the Third Degree following the shooting death of his acquaintance, Luis
Contreras, during their drive home from a nightclub. On July 10, 2003, the
court sentenced Appellant to a term of twenty to forty years’ incarceration.
This Court affirmed Appellant’s Judgment of Sentence, and our Supreme Court
denied allowance of appeal on November 3, 2004. Commonwealth v.
Serrano, 858 A.2d 1282 (Pa. Super. 2004) (unpublished memorandum),
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appeal denied, 863 A.2d 1145 (Pa. 2004). Appellant did not seek further
review of his Judgment of Sentence, which, thus, became final on February 1,
2005. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13 (petition for writ of
certiorari must be filed within 90 days of final judgment).
On August 12, 2020, Appellant filed the instant pro se PCRA Petition, his
third, alleging that his sentence is illegal, and that trial counsel was ineffective
for failing to object to his illegal sentence. PCRA Petition, 8/12/20, at
repaginated 2-3. On August 17, 2020, the PCRA court issued a Pa.R.Crim.P.
907 Notice of the court’s intent to dismiss Appellant’s PCRA Petition without a
hearing as untimely. Appellant responded that his illegal sentence claim
satisfied an exception to the PCRA time bar because it cannot be waived.
Response, 9/8/20, at 1-2. On September 14, 2020, the PCRA court issued an
Order dismissing Appellant’s PCRA Petition as untimely.
Appellant timely filed a pro se Notice of Appeal. Appellant and the PCRA
court both complied with Pa.R.A.P. 1925.1
Appellant raises the following issues for our review:
____________________________________________
1 On September 30, 2020, the PCRA court ordered Appellant to file a Rule
1925(b) Statement by October 21, 2020. On October 27, 2020, the PCRA
Court issued a Rule 1925(a) Opinion concluding that all of Appellant’s issues
were waived due to his failure file a timely Rule 1925(b) Statement. On
November 20, 2020, Appellant filed a Motion for Reconsideration, with an
attached Rule 1925(b) Statement, requesting that the court accept his
Statement as timely because, due to a COVID-19 outbreak and subsequent
lockdown in the prison where he is incarcerated, he had not received the PCRA
court’s Order in a timely manner. On November 30, 2020, the PCRA court
issued a Rule 1925(a) Opinion, which, inter alia, granted Appellant’s Motion.
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I. Whether the Court erred when it held that [Appellant]’s
PCRA was untimely in lieu of considering the merits of the
issues raised therein, namely [Appellant]’s viable claim of
an [illegal] sentence.
II. Did the [PCRA] [c]ourt err and abuse its discretion in
imposing a sentence on the charge of Third [D]egree
Murder, where the court misapplied the sentencing
guidelines and unknowingly imposed a sentence on that
charge that far exceeded the highest recommended
guideline sentence.
III. Whether the [PCRA] court erred when it failed to indicate
that it was sentencing [Appellant] outside of the guidelines
and failed to provide a contemporaneous statement of its
reasons for such deviation.
Appellant’s Br. at 6.
We review the denial of a PCRA petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
The timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016).
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date the underlying judgment of sentence
becomes final. 42 Pa.C.S. § 9545(b)(1). Appellant’s Petition, filed more than
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fifteen years after his Judgment of Sentence became final, is facially untimely.
However, Pennsylvania courts may consider an untimely PCRA petition if an
appellant pleads and proves one of the three exceptions set forth in Section
9545(b)(1) within one year of the date the claim could have been presented.
42 Pa.C.S §§ 9545(b)(1)(i-iii),(b)(2).
“Although legality of 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.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). “When a petitioner files an untimely PCRA petition raising a legality-
of-sentence claim, the claim is not waived, but the jurisdictional limits of the
PCRA itself render the claim incapable of review.” Commonwealth v. Jones,
932 A.2d 179, 182 (Pa. Super. 2007). In addition, “[i]t is well settled that
allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
Here, Appellant has not pleaded and proved the applicability of any of
the PCRA’s timeliness exceptions. Appellant’s claims that his sentence was
illegal and that his trial counsel was ineffective, without more, fail to overcome
the one-year time bar. Therefore, this Court, like the PCRA court, is without
jurisdiction to consider the merits of this appeal. We, thus, affirm the denial
of PCRA relief.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2021
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