Com. v. Maldonado-Rivera, V.

J-S33004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VICTOR MALDONADO-RIVERA,
Appellant No. 2050 MDA 2016
Appeal from the PCRA Order Entered November 23, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000088-2006
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2017
Appellant, Victor Maldonado-Rivera, appeals pro se from the post-
conviction court’s November 23, 2016 order dismissing, as untimely, his
petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
The facts of Appellant’s case are unnecessary to our disposition of his
appeal. The procedural history of his underlying convictions and direct
appeal were previously summarized by this Court as follows:
On May 25, 2006, Appellant entered into an open guilty
plea to two counts of involuntary deviate sexual intercourse, one
count of aggravated assault, and one count of indecent assault.
Sentencing was deferred pending a Megan’s Law evaluation by
the Sexual Offenders Assessment Board. On October 4, 2006,
the trial court determined that Appellant was a sexually violent
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*
Retired Senior Judge assigned to the Superior Court.
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predator, and sentenced him to an aggregate term of fourteen
and one-half to twenty-nine years of imprisonment, plus a five-
year probationary term. The trial court denied Appellant’s
subsequently filed post-sentence motion. Appellant filed a direct
appeal to this Court. In an unpublished memorandum filed on
March 11, 2009, this Court affirmed Appellant’s judgment of
sentence. Commonwealth v. Maldonado-Rivera, 972 A.2d
557 (Pa. Super. 2009). Our Supreme Court denied Appellant’s
petition for allowance of appeal on August 26, 2009.
Commonwealth v. Maldonado-Rivera, 983 A.2d 727 (Pa.
2009).
Commonwealth v. Maldonado-Rivera, No. 215 MDA 2012, unpublished
memorandum at 1-2 (Pa. Super. filed June 12, 2012).
Appellant thereafter filed a timely PCRA petition (which was styled as a
petition for writ of habeas corpus), arguing that he was denied the right to
counsel at his preliminary arraignment. That petition was denied by the
PCRA court without the appointment of counsel. On appeal, this Court
remanded, directing that counsel be appointed. See id. On remand,
appointed PCRA counsel filed a ‘no-merit’ letter and petition to withdraw
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988),
and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). The PCRA court
ultimately granted counsel’s petition to withdraw and denied Appellant’s
petition. This Court affirmed on appeal. Commonwealth v. Maldonado-
Rivera, 106 A.3d 166 (Pa. Super. 2014) (unpublished memorandum).
Appellant then filed another pro se PCRA petition on April 13, 2015,
this time challenging the legality of his sentence under Alleyne v. United
States, 133 S.Ct. 2151 (2013). The PCRA court denied that petition as
being untimely filed, and this Court affirmed on appeal. See
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Commonwealth v. Maldonado-Rivera, 141 A.3d 593 (Pa. Super. 2016)
(unpublished memorandum).
On July 5, 2016, Appellant filed the petition underlying the present
appeal, which he titled, “Motion to Correct[] Illegal And Unconstitutional
Sentence ‘Nunc Pro Tunc.’” Therein, Appellant argued that several
mandatory minimum sentences imposed in his case under 42 Pa.C.S. §
9718(a)(3) were illegal because that provision of section 9718 was not
added until November of 2004, which was after he committed the offenses
triggering the application of those sentences. On September 19, 2016, the
PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition without a hearing on the basis that it was untimely filed.
Appellant filed a pro se response, but the court dismissed his petition by
order entered on November 23, 2016.
Appellant filed a timely, pro se notice of appeal, and he also timely
complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b) statement.
The PCRA court filed a Rule 1925(a) opinion on February 8, 2017. Herein,
Appellant states two issues for our review:
A. Did the sentencing court err when it sentenced [Appellant],
illegally, under a sentencing statute that did not exist at the time
of the offense, violating the ex post facto laws of the Pa. and the
U.S. [C]onstitutions, and did counsel fail to inform [A]ppellant
that the court did not have the authority to sentence [A]ppellant
under the amended sentencing statute rendering him ineffective
for failing to perfect a direct appeal following a [j]udgment of
sentence?
B. Whether the sentencing court can waive the ex post facto
violation issue as untimely[?]
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Appellant’s Brief at 1 (unnumbered).
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.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(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
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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)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on November 24,
2009, ninety days after our Supreme Court denied his petition for allowance
of appeal from this Court’s decision affirming his judgment of sentence. See
42 Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking
the review); Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super.
1998) (directing that under the PCRA, petitioner’s judgment of sentence
becomes final ninety days after our Supreme Court rejects his or her petition
for allowance of appeal since petitioner had ninety additional days to seek
review with the United States Supreme Court). Accordingly, Appellant had
until November 24, 2010, to file a timely PCRA petition, making his petition
filed in July of 2016 facially untimely. Thus, for this Court to have
jurisdiction to review the merits of Appellant’s claims, he must prove that he
meets one of the exceptions to the timeliness requirements set forth in 42
Pa.C.S. § 9545(b).
Instantly, Appellant does not present any argument that he meets a
timeliness exception. Instead, he seemingly relies on the fact that legality of
sentencing issues cannot be waived; while that is true, such claims must
first satisfy the PCRA’s time limits. See Commonwealth v. Fahy, 737 A.2d
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214, 223 (Pa. 1999) (holding that claims challenging the legality of sentence
are subject to review within PCRA, but must first satisfy the PCRA’s time
limits). Additionally, Appellant’s suggestion that his trial/appellate attorneys
acted ineffectively by not raising this legality of sentence issue also do not
meet any timeliness exception. See Commonwealth v. Wharton, 886
A.2d 1120, 1127 (Pa. 2005) (“It is well settled that allegations of ineffective
assistance of counsel will not overcome the jurisdictional timeliness
requirements of the PCRA.”) (citations omitted).
Because Appellant has failed to plead and prove the applicability of any
timeliness exception to his claims, the PCRA court did not err in dismissing
his untimely petition.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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1
We also point out that, even if Appellant had pled and proven the
applicability of an exception under section 9545(b)(1)(i)-(iii), he would be
unable to meet the 60-day requirement of section 9545(b)(2), as he could
have immediately discovered and presented his legality of sentence claim at
the time those ostensibly illegal sentences were imposed in 2006.
Therefore, Appellant’s petition was properly denied for this reason as well.
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