Com. v. Ayala, H.

J-S58026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HAEN PETER AYALA,
Appellant No. 159 MDA 2017
Appeal from the PCRA Order December 19, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001465-2013
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 18, 2017
Appellant, Haen Peter Ayala, appeals pro se from the order denying his
second petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
On August 16, 2013, [Appellant] pled guilty in the above-
captioned case to one count of aggravated indecent assault on a
person less than 16 years of age.[1] In exchange, the 6 other
charges pending against [Appellant] were nolle prossed. The
charges arose between October of 2012 and May of 2013, when
[Appellant] engaged in sexual intercourse with a 15-year-old
girl. On December 11, 2013, [Appellant] was sentenced to 5 to
10 years. [Appellant] was represented by Joseph Kalinowski at
the guilty plea and David Cherundolo at the sentencing.
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1 18 Pa.C.S. § 3125(a)(8).
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On May 30, 2014, [Appellant] filed a Petition for Post
Conviction Collateral Relief. Kurt Lynott, Esq. was appointed to
represent [Appellant]. On August 6, 2014, Mr. Lynott filed a
Motion to Withdraw as Counsel Pursuant to a Turner-Finley
Letter. On October 21, 2014, this court granted the motion to
withdraw and issued a Notice of Intent to Dismiss the petition.
On January 8, 2015, the court dismissed the petition.
On August 24, 2016, [Appellant] filed a second Petition for
Post Conviction Collateral Relief.
Amended Memorandum and Notice of Intent to Dismiss, 11/15/16, at 1-2.
On November 7, 2016, the PCRA Court issued a memorandum and
notice of intent to dismiss, and on November 15, 2016, issued an amended
memorandum and notice of intent to dismiss. Appellant filed a response on
December 19, 2016. The PCRA court dismissed Appellant’s PCRA petition by
order entered December 19, 2016.2 Appellant filed a timely notice of appeal
on January 18, 2017.
Appellant presents the following issues for our review:
A. Did the PCRA court err as a matter of law by dismissing
Appellant’s second subsequently filed PCRA petition as
untimely filed and not meeting any of the three (3)
exceptions provided pursuant to 42 Pa.C.S. §9545(b)(1)(i)-
(iii)?
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2 We note that the PCRA court order entered December 19, 2016, indicates
that Appellant did not file a response to the PCRA court’s notice of intent to
dismiss. The record, however, indicates that Appellant’s response to the
PCRA court’s November 15, 2016 amended memorandum and notice of
intent to dismiss was filed December 19, 2016. This oversight, however,
does not impact the outcome of this matter for reasons discussed in the
Memorandum.
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B. Is Appellant serving an illegal sentence which was imposed
under a mandatory minimum statute which has since been
determined to be unconstitutional and therefore, is Appellant
entitled to resentencing as a direct result?
Appellant’s Brief at 4.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence
“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. § 9545(b)(3).
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However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.3 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 the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
Appellant’s judgment of sentence became final on January 10, 2014,
when the time for filing a direct appeal to this Court expired. See 42
Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes final at the
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3 The 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)(i), (ii), and (iii).
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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.”); Pa.R.A.P. 903. Therefore,
Appellant had to file the current PCRA petition in this matter by January 10,
2015, in order for it to be timely.
Appellant filed the instant PCRA petition, his second, on August 24,
2016. Accordingly, Appellant’s instant PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file
his petition within sixty days of the date that the exception could be
asserted. 42 Pa.C.S. § 9545(b)(2). This is true despite the fact that
Appellant’s petition presents a challenge to the legality of his sentence. See
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)
(“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.”).
Appellant argues that he is serving an illegal sentence imposed under
a mandatory minimum statute, 42 Pa.C.S. § 9718, which has since been
determined to be unconstitutional. Appellant’s Brief at 12. Appellant
maintains that his instant PCRA petition is timely as it falls within the third
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exception of a retroactive constitutional right at 42 Pa.C.S. 9545(b)(1)(iii).
Id. at 10. Appellant asserts that his petition meets this exception because it
was filed within sixty days of the Pennsylvania Supreme Court’s ruling in the
matter of Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016). Id. at 8,
10.
We first note that the mandatory minimum sentences outlined in 42
Pa.C.S. § 9718(a) do not apply to the crime to which Appellant pled guilty,
specifically 18 Pa.C.S. § 3125(a)(8). See 42 Pa.C.S. § 9718(a) (providing
mandatory minimum sentences for violations of 18 Pa.C.S. § 3125(a)(1)-
(7)). In other words, 18 Pa.C.S. § 3125(a)(8) does not carry a mandatory
minimum sentence. Moreover, at the guilty plea hearing, the
Commonwealth acknowledged there were no mandatory minimum sentences
that would be triggered by Appellant’s plea to that charge. N.T., 8/16/13, at
2, 5. Furthermore, there is no indication in the sentencing transcript that
Appellant was sentenced pursuant to a mandatory minimum. N.T.,
12/11/13, at 8. Thus, Appellant’s argument that he was illegally sentenced
as a result of an imposition of a mandatory minimum sentence lacks merit.
Additionally, in Wolfe, our Supreme Court held that 42 Pa.C.S.
§ 9718, the statute providing a mandatory minimum sentence for
involuntary deviate sexual intercourse crimes, is unconstitutional under
Alleyne v. United States, 133 S. Ct. 2151 (2013). Wolfe, 140 A.3d at
663. Accordingly, the Wolfe Court did not recognize a new constitutional
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right, let alone hold that any such right applied retroactively; rather, Wolfe
merely applied Alleyne on direct appeal to hold Section 9718 was
unconstitutional. Id. at 660-663. Moreover, it is well-settled that Alleyne
does not invalidate a mandatory minimum sentence when the claim is raised
in an untimely PCRA petition. See Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014)(“though not technically waivable, a legality of
sentence claim may nevertheless be lost should it be raised ... in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the court of jurisdiction over the claim.”). Therefore, had
Appellant been sentenced to a mandatory minimum, his reliance on Wolfe
would not establish the PCRA exception for a new retroactive constitutional
right pursuant to 42 Pa.C.S. § 9545(b)(1)(iii).
Consequently, because the instant PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the claims
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to
hear untimely petition). Likewise, we lack the authority to address the
merits of any substantive claims raised in the PCRA petition. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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