Com. v. Diodoro, A.

J. S02015/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANTHONY DIODORO, : No. 1932 EDA 2016
:
Appellant :
Appeal from the PCRA Order, June 7, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0005422-2010
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 28, 2017
Anthony Diodoro appeals pro se from the order of June 7, 2016,
issued by the Court of Common Pleas of Delaware County that dismissed his
third PCRA1 petition without a hearing.
The factual and procedural history of this matter as recounted by the
trial court is as follows:
On January 24, 2011 [appellant] entered a
negotiated guilty plea to twenty-five consolidated
counts of possession of child pornography. See
18 Pa.C.S.A. §6312[(d.1)]. On June 29, 2011 he
was sentenced to a term of twelve and one half to
twenty-five years of incarceration. [Appellant] was
granted leave to file a motion for modification of
sentence nunc pro tunc. A motion for modification
of sentence was denied on March 1, 2012. No
appeal from judgment of sentence was taken.
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Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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On July 18, 2012 a counseled PCRA petition
was filed on [appellant’s] behalf by Jonathan J.
Sobel, Esquire. The Commonwealth responded to
the petition and on May 23, 2013 the petition was
denied. [Appellant] did not pursue his right to an
appeal.
On September 11, 2014 [appellant] filed a
second PCRA petition. The petition alleged that a
sentence greater than the lawful maximum was
imposed. See 42 Pa.C.S.A. § 9543(a)(2)(vii). On
September 30, 2014 the PCRA court issued a
Pa.R.Crim.P. 907 notice. [Appellant] filed a
counseled response and the petition was dismissed
as untimely on November 12, 2014. [Appellant]
appealed to the Superior Court and on June 18, 2015
the November 12th Order was affirmed. [Appellant]
filed a petition for allowance of appeal to the
Pennsylvania Supreme Court and on March 17, 2016
that petition was denied.
On April 1, 2016 [appellant] filed his third
PCRA petition. The petition alleges that he was
denied the effective assistance of counsel when he
entered his negotiated guilty plea, that an illegal
sentence was imposed and that he was convicted
before a tribunal without jurisdiction. See
42 Pa.C.S.A. § 9543(a)(2)(ii), (vii) & (viii). In an
effort to bring this petition within the PCRA and
within the jurisdiction of the court [appellant]
alleged, without any factual support, that he was
“mentally incompetent during all court proceedings,”
and therefore, this petition satisfied the timeliness
exception set forth in Section 9545(b)(1)(ii) of the
Act. This allegation is patently frivolous and is
unsupported by any facts of record. Apart from a
bald allegation [appellant] has failed to offer any
evidence that supports his claim. On May 9, 2016 an
Order giving notice of the court’s intent to dismiss
the petition without an evidentiary hearing was
entered. The court informed [appellant] that the
petition did not satisfy the PCRA’s jurisdictional time
requirements. [Appellant] was given an opportunity
to respond and was subsequently granted an
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extension of the period in which to respond. On
May 31, 2016 [appellant] filed an “Objection” in
which he repeated his substantive claims but offered
no additional facts in support of the bald claim that
an exception that is set forth in 42 Pa.C.S.A. 9545(b)
brings this third petition within the jurisdiction of the
court. The PCRA petition that is before the court was
dismissed on June 7, 2016.
Trial court opinion, 7/12/16 at 1-3.
Appellant appealed to this court on June 29, 2016. Before this court
appellant contends that the trial court erred when it dismissed his PCRA
petition without a hearing, that his counsel was ineffective for failing to
object to the Commonwealth’s alleged breach of the plea bargain, that the
sentencing court erred when it imposed the sentence on him, and that the
sentencing court violated his right to due process when it imposed the
sentence on him.
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).
Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
Pennsylvania law makes clear no court has
jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Robinson, 575 Pa. 500, 508,
837 A.2d 1157, 1161 (2003). The most recent
amendments to the PCRA, effective January 16,
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1996, provide a PCRA petition, including a second or
subsequent petition, shall be filed within one year of
the date the underlying judgment becomes final.
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
Commonwealth v. Vega, 754 A.2d 714, 717
(Pa.Super.2000). 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.” 42 Pa.C.S.A. § 9545(b)(3).
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010).
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited
circumstances under which the late filing of a
petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
To invoke an exception, a petition must allege and
prove:
(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.
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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
PCRA petition is not filed within one year of the
expiration of direct review, or not eligible for one of
the three limited exceptions, or entitled to one of the
exceptions, but not filed within 60 days of the date
that the claim could have been first brought, the trial
court has no power to address the substantive merits
of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
(2000); 42 Pa.C.S.A. § 9545(b)(2).
Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and
satisfy the burden of proof.” Commonwealth v. Geer, 936 A.2d 1075,
1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
“The PCRA’s time restrictions are jurisdictional in
nature. Thus, [i]f a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction
over the petition. Without jurisdiction, we simply do
not have the legal authority to address the
substantive claims.” Commonwealth v. Albrecht,
606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
520, 522 (2006)). Statutory time limitations “are
mandatory and interpreted literally; thus, a court has
no authority to extend filing periods except as the
statute permits.” [Commonwealth v.] Fahy, 737
A.2d [214] at 222 [Pa. 1999].
Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).
Here, appellant’s motion for modification of his sentence was denied
on March 1, 2012. Appellant had 30 days to file a direct appeal or until
March 31, 2012. Appellant did not file a direct appeal. In order to timely file
a PCRA petition, appellant had to file this petition within one year of
March 31, 2012. The current petition was not filed until April 1, 2016, which
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was clearly untimely. In order for the PCRA court to properly consider the
current petition, appellant must establish that the petition meets one of the
three exceptions to the one-year requirement.
In his petition, appellant alleged that he was mentally incompetent
during all court proceedings so that he satisfied the unknown facts exception
contained in Section 9545(b)(1)(ii) of the Act, 42 Pa.C.S.A. § 9545(b)(1)(ii).
However, a review of appellant’s brief reveals that he does not raise the
issue of his mental competence, so that issue is waived. See In re K.K.,
957 A.2d 298, 303 (Pa.Super. 2008) (an appellant abandons an issue by not
raising it in the argument section of his brief).
Appellant also claims that the unknown facts exception excuses his
untimeliness because the Commonwealth breached its plea bargain with him
because he pled guilty to a sentence that exceeded the statutory maximum
without authorization. As a result, appellant argues that his trial counsel
was ineffective because he did not object to the imposition of the sentence.
However, appellant does not specify why he could not have made such a
claim in his first PCRA petition as he fails to establish why these “facts” were
unknown to appellant and could not have been ascertained by an exercise of
due diligence. Also, these claims could have been brought in appellant’s first
PCRA petition and are waived on that basis. 42 Pa.C.S.A. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
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raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”).
Appellant next asserts that his untimely petition meets the recognition
of a new constitutional right exception contained in Section 9545(b)(1)(iii).
It is not clear exactly to which constitutional right he is referring. Although
he mentions Alleyne v. United States, U.S. , 133 S.Ct. 2151(2013), he concedes that he was not subjected to mandatory minimum
sentencing.
To the extent appellant is arguing that his sentence is illegal, this claim
does not allow him to skirt the timeliness requirement. “[E]ven claims that
a sentence was illegal, an issue deemed incapable of being waived, are not
beyond the jurisdictional time restrictions.” Commonwealth v. Grafton,
928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa.
1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).
Therefore, appellant’s illegal sentencing claim does not operate as an
independent exception to the PCRA’s jurisdictional time-bar.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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