Com. v. Marmolejos, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN MARMOLEJOS :
:
Appellant : No. 1283 EDA 2022
Appeal from the PCRA Order Entered April 1, 2022
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003191-2010
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JUNE 13, 2023
Marvin Marmolejos (“Marmolejos”) appeals pro se from the order
dismissing his serial petition for relief filed pursuant to the Post Conviction
Relief Act (“PCRA”).1 We affirm.
The PCRA court provided the following factual and procedural history:
[I]n May [] 2010[, Marmolejos] was arrested and charged
with criminal attempt - homicide, assault of a law enforcement
officer, firearms not to be carried without a license, and
possession of a controlled substance[,] for an incident arising in
Upper Darby, Delaware County, Pennsylvania[,] when
[Marmolejos] used a firearm to shoot Officer Blohm of the Upper
Darby Police Department. Officer Blohm was shot twice in the
lower back, once in the upper back, and once on his left hand.
Officer Blohm survived the shooting.
[I]n August [] 2010[, Marmolejos] entered an open guilty
plea [to, inter alia, attempted murder and assault of a law
enforcement officer]. On November 8, 2010[,] the court imposed
judgment of sentence upon [Marmolejos] to confinement in a
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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[s]tate [c]orrectional [f]acility for a minimum of [3]0 years to a
maximum of [6]0 years . . .. [See N.T., 11/8/10, at 85; see also
Disposition Sheet, 11/9/10. The trial court denied Marmolejos’s
post-sentence motion on May 10, 2011, and Marmolejos filed no
direct appeal.]
****
[Following two unsuccessful PCRA petitions over the years,
o]n June 10, 2021 [Marmolejos] filed a third pro se [p]etition for
[PCRA r]elief. [The PCRA court appointed counsel, who] filed a
“no merit” letter[ pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc), concluding, inter alia, that
Marmolejos’s petition was untimely, and no exceptions applied].
On April 1, 2022 following the issuance of [a] [n]otice of [i]ntent
to [d]ismiss [Marmolejos’s petition] without [a] hearing, the
[PCRA] court entered an order dismissing [Marmolejos’s] . . .
petition. [Following the dismissal order, Marmolejos filed a facially
untimely pro se response to the PCRA court’s notice of intent to
dismiss, pursuant to Pa.R.Crim.P. 907, but did not assert therein
any exceptions to the PCRA’s timeliness requirement under 42
Pa.C.S.A. § 9545(b)(1), but instead maintained the PCRA court
possessed jurisdiction to correct an illegal sentence at any time.]
PCRA Court Opinion, 6/29/22, at 1-3 (footnote omitted). Following dismissal
of his PCRA petition, Marmolejos timely filed a pro se notice of appeal.2 The
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2As stated above, the PCRA court dismissed Marmolejos’s petition on April 1,
2022. Marmolejos had thirty days to file a notice of appeal. May 1, 2022 fell
on a Sunday. Accordingly, Marmolejos had until May 2, 2022 to mail his notice
of appeal. See 1 Pa.C.S.A. § 1908 (excluding weekends from time
computations). Marmolejos’s pro se notice of appeal was filed on May 9, 2022,
and is thus facially untimely, since he filed it more than thirty days after the
entry of the dismissal order. See Pa.R.A.P. 903(a) (providing that a notice of
appeal shall be filed within thirty days after entry of the order from which the
appeal is taken). In response to this Court’s rule to show cause why his appeal
should not be quashed as untimely, Marmolejos attached his inmate Monthly
Account Statement showing that he paid postage on May 2, 2022. See
Response to Rule to Show Cause, 6/27/22, at 12; see also Pa.R.A.P. 121(f)
(Footnote Continued Next Page)
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PCRA court did not order Marmolejos to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), but the PCRA court
nevertheless issued an opinion in support of its order pursuant to Rule
1925(a).
Marmolejos raises the following issues for our review:
1. Is [counsel] not . . . [i]neffective, as well a[s in] violation of
the [Sixth] Amendment [] [r]ight to a [f]air [t]rial and [r]ight
to a competent effective [a]ttorney, and [the] Article 1[,] § 9
of the Pennsylvania Constitution [r]ights of [the] accused in
criminal prosecution to be protected throughout the entire
[c]ourt process without bias, prejudice or coercion[,] whe[r]e
[Marmolejos] has a right to withdraw his guilty plea in a timely
fashion and be heard by the courts on his claims?
2. Did not the Pennsylvania Supreme Court [previously] hold
[]that the filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes
ineffective assistance of counsel per se . . . and [also] found
counsel violated [a] defendant’s rights . . . where [the
defendant] request[ed] to withdraw guilty plea, [but] counsel
filed [a m]otion [for] [r]econsideration instead?
Marmolejos’s Brief at v.
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(providing that a pro se filing by an incarcerated person is deemed filed on
the date it is delivered to prison authorities for mailing as documented by
“reasonably verifiable evidence”). The Commonwealth “take no position on
the determination of [the] timeliness of the appeal . . ..” Commonwealth’s
Brief at 3 n.1. Therefore, we consider Marmolejos’s appeal timely. See
Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (providing
that, “[w]here . . . the opposing party does not challenge the timeliness of the
appeal and the prisoner’s assertion of timeliness is plausible, we may find the
appeal timely without remand”).
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Our standard of review of an order dismissing a PCRA petition is well-
settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation
and quotations omitted). The PCRA petitioner “has the burden to persuade
this Court that the PCRA court erred and that such error requires relief.”
Commonwealth v. Wholaver, 177 A.3d 136, 144–45 (Pa. 2018) (internal
citations omitted).
We must initially determine whether the PCRA court had jurisdiction
over Marmolejos’s petition. Under the PCRA, any petition “including a second
or subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).3 The PCRA’s timeliness
requirements are jurisdictional in nature, and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
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3 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.A. § 9545(b)(3).
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Pennsylvania courts may nevertheless consider an untimely PCRA petition if
the petitioner can plead and prove one of three exceptions set forth in section
9545(b)(1)(i)-(iii). A challenge to the legality of one’s sentence does not allow
him to evade the PCRA’s timeliness requirements. See Commonwealth v.
Woods, 179 A.3d 37, 43 (Pa. Super. 2017). In other words, “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.” Id. (internal
citation, quotation, and brackets omitted).
Here, the trial court denied Marmolejos’s post-sentence motion on May
10, 2011. See Order, 5/10/11. Marmolejos filed no direct appeal; thus, his
judgment of sentence became final thirty days later, i.e., on June 9, 2011.
See 42 Pa.C.S.A. 9545(b)(3) (stating that a judgment of sentence becomes
final, inter alia, following the expiration of the time for seeking direct review);
see also Pa.R.A.P. 903(a) (providing that a notice of appeal shall be filed
within thirty days after entry of the order from which the appeal is taken);
Pa.R.Crim.P. 720(a)(2)(a) (requiring that a notice of appeal be filed within
thirty days of the entry of the order deciding a post-sentence motion).
Marmolejos therefore had until June 11, 2012 to file a timely PCRA petition.
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See 42 Pa.C.S.A. § 9545(b)(1).4 Thus, Marmolejos’s present PCRA petition,
filed on June 10, 2021, is facially untimely.
Marmolejos acknowledges that the PCRA’s timeliness requirements
apply, see Marmolejos’s Brief at 6, yet he does not explain in his appellate
brief which exception to the PCRA’s time-bar allegedly conferred jurisdiction
on the PCRA court to entertain his facially untimely petition.5 Marmolejos
argues, presently, only that “this Court has jurisdiction to hear his meritable
[sic] claims[,] as they have been/were completely abandoned as a result of
42 Pa.C.S.A. § 9545 Jurisdiction and proceedings.” Marmolejos’s Brief at 6
n.3.
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4June 9, 2012 fell on a Saturday. See 1 Pa.C.S.A. § 1908 (providing that
weekends and holidays are excluded from time computations).
5 We observe that in his latest pro se PCRA petition, Marmolejos asserted the
following governmental interference exceptions to the PCRA’s timeliness
requirement, pursuant to 42 Pa.C.S.A. 9545(b)(1)(i): (1) trial counsel
abandoned him in May 2011; and (2) PCRA counsel failed to raise trial
counsel’s ineffectiveness. See PCRA Petition, 6/10/21, at 3. Marmolejos
further asserted an exception under 42 Pa.C.S.A. 9545(b)(1)(iii) in the form
of an unspecified constitutional right with retroactive applicability. See id.
Marmolejos’s PCRA counsel explained that Marmolejos had not provided him
any information “that would suggest that any of the instant claims qualify for
him to plead any statutory exception under [section] 9545(b)(1),” and,
accordingly, Marmolejos “is time-barred from raising the allegations contained
in his third PCRA [petition.” No-Merit Letter, 12/9/21, at 5. In his facially
untimely pro se response to the PCRA court’s notice of intent to dismiss,
pursuant to Pa.R.Crim.P. 907, Marmolejos did not plead a specific timeliness
exception, but instead maintained that the PCRA court has jurisdiction to
correct an illegal sentence at any time. See Rule 907 Response, 4/4/22, at
3.
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The PCRA court concluded that Marmolejos’s “June 10, 2021 PCRA
petition is untimely; [and, as he] did not allege or prove an exception under
[section] 9545(b)(1)[,] . . . [t]his court had not jurisdiction to consider the
PCRA petition.” PCRA Court Opinion, 6/29/22, at 5.
Following our review, we conclude that the PCRA court’s order is
supported by the record and free of legal error, because Marmolejos failed to
demonstrate, both below and now on appeal, that an exception to the PCRA’s
timeliness requirement applies. Marmolejos has thus failed to meet his burden
of persuading this Court that the PCRA court erred in dismissing his pro se
petition. See Wholaver, 177 A.3d at 144–45.6 Therefore, because the PCRA
court lacked jurisdiction to entertain his PCRA petition, Marmolejos is due no
relief. See Albrecht, 994 A.2d at 1093.7
Order affirmed.
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6 To the extent that Marmolejos argues, consistently with his Rule 907
response, that the PCRA court had jurisdiction over his petition because it
contained a challenge to the legality of his sentence, we reiterate that a
challenge to the legality of one’s sentence does not allow him to evade the
PCRA’s timeliness requirements. See Woods, 179 A.3d at 43.
7 As noted above, neither the PCRA court nor this Court have jurisdiction to
entertain the merits of Marmolejos’s untimely petition. See, e.g.,
Commonwealth v. Woolstrum, 271 A.3d 512, 513 (Pa. Super. 2022)
(providing that “[i]f a PCRA petition is untimely, courts lack jurisdiction over
the petition”) (internal citations omitted). Accordingly, we do not reach the
substantive merits of Marmolejos’s appellate issues.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/13/2023
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