J-S63041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

ERASMO M. PIEDRA

                             Appellant                No. 2926 EDA 2015


               Appeal from the PCRA Order September 15, 2015
       in the Court of Common Pleas of Chester County Criminal Division
                                  at No(s):
                          CP-15-CR-0001234-2007
                          CP-15-CR-0001882-2007
                          CP-15-CR-0001922-2007
                          CP-15-CR-0001966-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

JUDGMENT ORDER BY FITZGERALD, J.:               FILED SEPTEMBER 27, 2016

        Pro se Appellant, Erasmo M. Piedra, appeals from the order dismissing

his second Post Conviction Relief Act1 (“PCRA”) petition as untimely.      We

affirm.

        We adopt the facts and procedural history set forth in the PCRA court’s

opinions. See Rule 1925 Second Supplemental Op., 10/22/15, at 1-2; Rule

1925 Supplemental Op., 10/19/15, at 1-3; see also Order, 9/15/15, at 2

n.1.; see generally Commonwealth v. Piedra, 595 EDA 2013 (Pa. Super.

Dec. 4, 2013) (affirming denial of Appellant’s first           PCRA petition);


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S63041-16


Commonwealth v. Piedra, 323 EDA 2009 (Pa. Super. Oct. 5, 2010)

(affirming Appellant’s direct appeal).       As noted by the PCRA court,

Appellant’s second petition, docketed on May 15, 2015, raised only one

issue: a challenge to the discretionary aspects of his sentence. Following a

Pa.R.Crim.P. 907 notice, Appellant filed a pro se response raising one

additional issue: a claim that his sentence was illegal under Alleyne v.

United States, 133 S. Ct. 2151 (2013).          The court formally dismissed

Appellant’s petition on September 15, 2015. Appellant timely appealed and

timely filed a court-ordered Pa.R.A.P. 1925(b) statement raising a host of

additional issues that were not raised in his original petition or response to

the Rule 907 notice.2

      Before addressing the merits of Appellant’s two preserved claims, we

examine whether we have jurisdiction. See Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999).       “Our standard of review of a PCRA court’s

dismissal of a PCRA petition is limited to examining whether the PCRA

court’s determination is supported by the evidence of record and free of

legal error.”   Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super.

2003) (en banc) (citation omitted). A PCRA petition “must normally be filed

within one year of the date the judgment becomes final . . . unless one of

the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within

2
   It is well-settled those additional issues are waived because they were not
first presented to the PCRA court. See Pa.R.A.P. 302.




                                     -2-
J-S63041-16


60 days of the date the claim could have been presented.” Commonwealth

v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote

omitted).

       After careful review of the record, the parties’ briefs, and the decision

by the PCRA court, we affirm on the basis of the PCRA court’s reasoning.

See PCRA Ct. Order, 9/15/15, at 2 n.1; Order, 7/9/15, at 2 n.1 (holding (1)

Appellant failed to plead and prove any one of the three timeliness

exceptions to the one-year time bar; (2) challenge to discretionary aspects

of sentence is not cognizable under PCRA; and (3) Alleyne does not apply

retroactively to Appellant’s case, as his judgment of sentence became final

well   before   Alleyne    was   issued);   see   also   Commonwealth        v.

Washington, ___ A.3d ___, ___, 2016 WL 3909088 at *8 (Pa. July 19,

2016) (holding, “Alleyne does not apply retroactively to cases pending on

collateral review”). Having discerned no abuse of discretion or error of law,

we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2016




                                      -3-
                                                                      Circulated 09/02/2016 01:22 PM




COMMONWEALTH        OF PENNSYLVANIA              IN THE COURT OF COMMON PLEAS
                                                 CHESTER COUNTY, PENNSYLVANIA


                   vs.
                                                 NO. CP-15-CR-0001234-2007;1882-
                                                 2007; 1922-07; 1966-2007

          ERASMO M. PIEDRA
              Appellant                          CRIMINAL ACTION 1;\., \·  '_
                                                                       \,.- _.


                                                                                              ,.f)

Nicholas J. Casenta, Chief Deputy District Attorney for the Commonweahli ,· ,
Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove                     . ,
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Nagle, S.J.                                                October 19, 2015


                     RULE 1925 SUPPLEMENTAL OPINION


      We write briefly to address Appellant, Erasmo Piedra's second,

untimely PCRA Petition. Appellant filed his second pro se PCRA petition

on May 15, 2015. As discussed in the footnote to our Notice of Intent to

Dismiss his second PCRA Petition filed pursuant to Pa. R. Crim. P.

907(1), Appellant had until March 30, 2012 to file a timely PCRA petition

seeking collateral relief. His first PCRA petition, while timely, was

dismissed following hearing, and our determination was affirmed on

appeal by the Superior Court on December 4, 2013. Commonwealth v.

Piedra, No. 595 EDA 2013.
      We append our Notice to Dismiss Appellant's           second PCRA

 petition to this Opinion for the Superior Court's convenience, in which we

 advised Appellant his second Petition was untimely, and that his claim as

expressed in his second Petition was not cognizable under the PCRA.

Appellant responded to our Notice on July 20, 2015, in which he raised

the alleged illegality of his aggregate sentence based upon Alleyne v.

United States,   133 S. Ct. 2151, 2155 (2013), and his presumed

entitlement to relief thereunder. On September 15, 2015, we issued our

footnoted Order dismissing his second PCRA, in which we addressed

again the untimeliness of his second Petition and discussed the

inapplicability of Alleyne to Appellant's collateral appeal. We append a

copy of our Dismissal Order to the instant Opinion for the Superior

Court's convenience.

      Appellant filed a timely pro se Notice of Appeal on September 28,

2015. Because the grounds for the instant appeal are clearly expressed

in Appellant's Response to our Notice of Intent to Dismiss his second

Petition, and reasons for our doing so are detailed in our footnoted Order

and Notice, we did not require Appellant to file a Concise Statement of

Errors Complained of on Appeal. We note that Appellant is not entitled to

the appointment of counsel in a second untimely PCRA petition that does

                                    2
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S:\Admin\NAGLE\Piedra,     Erasmo, 2nd PCRA, NOTICE OF INTENT TO DISMISS PCRA
PETITION.Docx




COMMONWEALTH OF PENNSYLVANIA                      IN THE COURT OF COMMON PLEAS

                                                  CHESTER COUNTY, PENNSYLVANIA
                    vs.
                                                  NO. CP-l5-CR-0001234-2007;            1882-2007;
                                                  1922-07; 1966-2007
                                                                               ,... ,
            ERASMO PIEDRA
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               Appellant                          CRIMINAL ACTION
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Nicholas J. Casenta, Chief Deputy District Attorney for the Commonwealth:        g       ::~·)>
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Erasmo Piedra, pro se                                                   :---~,~"J:)
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               NOTICE OF INTENT TO DISMISS PCRA PETITION
                    PURSUANT TO Pa.R.Crim.P. 907(1)



      AND NOW, this __           q_· -=-·J_H_, _ day of July. 2015. upon consideration                        of

Erasmo Piedra's 2nd PCRA petition, filed on May 15, 2015, it appearing to

the Court the Petition is not timely filed, and that no exception to the time

requirement has been pled, and, further, that the claim asserted implicates

a challenge    to the     discretionary aspects of sentencing, which is not

cognizable under the Post Conviction Relief Act, this 'Court finds that it has

no jurisdiction to consider the Petition, and, further, if jurisdiction existed,

there are no genuine issues concerning any material fact that require
determination in an evidentiary hearing. Accordingly, we conclude that the

Defendant/Petitioner, Erasmo Piedra (the "Defendant") is not entitled to

post-conviction collateral relief, and that no purpose would be served by

any further proceedings. As required by Pa.R.Crim.P. 907(1 ), the Court

having so determined, the Defendant is hereby given NOTICE of the

Court's intent to dismiss the Defendant's   2nd   PCRA petition.

        The Defendant may respond to this NOTICE in writing within twenty

(20) days of the docketing of this Order. If the Defendant has not so

responded, a subsequent Order will be entered by the Court dismissing the

Defendant's PCRA petition. That subsequent Order shall be a final

appealable Order disposing of the Defendant's PCRA petition.

        If the Defendant responds in writing to this NOTICE, the Court will

either: dismiss Defendant's PCRA petition; if warranted, grant him leave to

file an amended petition; or, if warranted, direct that further proceedings be

held.

        The Clerk of Courts of Chester County is ORDERED to serve a copy

of this Notice of Intent to Dismiss Defendant's PCRA petition on

the following:

        (a)   The District Attorney of Chester County.
       (b)    Defendant, Erasmo Piedra, SCI Pine Grove, 191 Fyock Road,

Indiana, PA 15701 by Certified Mail, Return Receipt Requested.1




                                                  Ronald C. Nagle




1
   On May 23, 2008, Defendant was convicted by a jury of multiple counts of possession
 with intent to deliver a controlled substance and other drug-related charges. He
 appealed the-judgment of sentence to-Superior Court, which affirmed. The
 Pennsylvania Supreme Court denied allocator on March 30, 2011. Commonwealth v.
 Piedra, 15 A.3d 516 (Pa. Super., 2010, appeal denied, 610 Pa. 584, 19 A.3d 516
 (2011). Accordingly, Defendant had until March 30, 2012 to file a PCRA petition seeking
 collateral relief. On March 30, 2012 Defendant filed a timely PCRA petition, and an
 amended petition on May 24, 2012, which we denied following hearing. The Superior
 Court affirmed dismissal of the petition on December 4, 2013. No 595 EDA 2013. lf the
 PCRA petition is determined to be untimely, and no exception is pied and proven, the
 petition must be dismissed without hearing because Pennsylvania courts are without
jurisdiction to consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d
 516 (Pa. Super., 2011), appeal denied, 47 A.3d 845 (Pa., 2012). Instantly, Defendant's
 petition does not aver an exception to the PCRA's time requirement. See 42 Pa.C.S.A.
 §9545.

Further, even were the petition timely, Defendant's petition challenges the discretionary
aspects of his sentence, claiming his crimes, collectively considered, constituted his first
drug offence, and that the sentence imposed was an abuse of the court's discretion.
Challenges to discretionary aspects of sentence that do no implicate the legality of
sentence are not cognizable under the PCRA, Commonwealth v. Wrecks, 934 A.2d
1287 (Pa.Super.,2007)
                  .                                                i
S:\Admin\NAGLE\Pk .,.a, Erasmo, Order, 2nd PCRA, Response tc , .otlce of Intent to Dismiss.docx




COMMONWEALTH           OF PENNSYLVANIA                   IN THE COURT OF COMMON PLEAS
                                                         CHESTER COUNTY, PENNSYLVANIA



                      vs.
                                                         NO. CP-15-CR-0001234-2007;1882-
                                                         2007; 1922-07; 1966-2007

          ERASMO M. PIEDRA                                                                         r-...>
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                                                         CRIMINAL ACTION     --/~~
              Appellant
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Nicholas J, Casenta, Chief Deputy District Attorney for the Commonwealtp::::                       Vl             '
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Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove                     ·.:.,             c-'.       -::i
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                               ORDER OF COURT                                                      ...

       AND       NOW,        this            / 61'h.    day   of       September,                  2015                     the

Petitioner/Defendant, Erasmo Piedra's second PCRA Petition, filed on

May 15, 2015 is hereby DISMISSED1.
                                 -·   -   . ---   --·

       The Petitioner/Defendant is advised that this is a final Order

disposing of his second PCRA petition, and that he has thirty (30) days

from the date of this Order to file an appeal to the Superior Court of

Pennsylvania, with the Clerk of Courts of Chester County.

       The Clerk of Courts of Chester County is ORDERED to serve a

copy of this Order upon the following:

       (a)     District Attorney of Chester County.
        (b)     Defendant - by Certified Mail, Return Receipt Requested.



                                                           COURT:



                                                          ({Jlt,/l!ffl
                                                 Ronald C. Nagle




       1
           Petitioner, Erasmo Piedra responded on July 20, 2015 to this court's Notice
of Intent to dismiss his second PCRA Petition. Petitioner's second petition advanced
the claim that the aggregate sentence we imposed of 17 to 30 years imprisonment
was an abuse of discretion and greater than the lawful maximum because his
criminal conduct was comprised of a series of drug offenses originating out of a
single criminal enterprise for which he was collectively tried, and should, therefore,
have collectively "constituted his first drug offense". PCRA Petition, para. 5(A). We
advised Petitioner that his second petition was untimely, and that his petition did not'
aver an exception to the PCRA's one-year limitations period.
       In his Response to the court's Notice of Intent to Dismiss, Petitioner expressly
raises a challenge to the legality of 18 Pa.C.S.A. §7508 under which he was
sentenced, claims as a consequence he is serving an illegal sentence, seeks leave
to amend his petition to permit a challenge to his sentence pursuant to Alleyne, infra,
and invokes the applicability of the PCRA's 60-day time-bar statutory exception to the
one-year jurisdictional time bar. 42 Pa.C.S.A. §9545(b)(2). A PCRA petition invoking
one of the statutory exceptions must "be filed within 60 days of the date the claim
could have been presented". Petitioner's Response does identify the Section 9545
exception that is alleged to apply to his case or the factual basis supporting the
exception. 42 Pa.C.S.A. §9545(b)(1)(i)-(iii).
       Petitioner   was sentenced   under 18 Pa.C.S.A. § 7508(a)(iii), including      4
separate mandatory minimum sentences imposed following his conviction by a jury
arising from separate Informations charging PWID. Section 7508 has subsequently
been held to be unconstitutional. See Commonwealth v. Cardwell, 105 A.3d 7 48 (Pa.
Super., 2014). Petitioner now seeks PCRA relief on a claim premised upon the
United States Supreme Court's decision in Alleyne v. United Stales, 133 S.Ct. 2151,
2155 (2013) (holding that, to comply with dictates of the Sixth Amendment, facts that
increase a mandatory minimum sentence are elements of the offense and must be
submitted to the jury and proven beyond reasonable doubt), and several
subsequently issued Pennsylvania appellate court decisions applying Alleyne.
Petitioner did not raise an Alleyne claim in hoc verba in his second PCRA petition.
Although illegal sentencing issues cannot be waived, they still must be presented in a
timely PCRA petition. Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999).
The filing mandates of the PCRA are jurisdictional in nature and are strictly
construed. Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306, 309 (2008). The
procedural Rules contemplate that amendments to pending PCRA petitions are to be
"freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A). However, even
were Petitioner permitted to amend his petition to plead an exception to the one-year
time bar, Alleyne and its Pennsylvania progeny would not apply retroactively to
Petitioner's case since it was not pending on direct appeal when Alleyne was issued.
Commonwealth v. Newman, 99 A.3d 86(Pa. Super., 2014). On direct appeal, the
Superior Court affirmed Petitioner's judgment of sentence on October 5, 2010, and
the Pennsylvania Supreme Court denied allocator on March 30, 2011, well before the
decision in Alleyne was issued. Commonwealth v. Piedra, 15 A.3d 516 (Pa. Super.,
2010), appeal denied, 610 Pa. 584, 19 A.3d 1050 (2011).
      The exception set forth in Section 9545(b((1)(iii), which presumably Petitioner
is asserting, applies only where "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 for in this section and has been held by
that court to apply retroactively" . Neither the United States Supreme Court nor our
Supreme Court has held that Alleyne applies retroactively to cases on collateral
review. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super., 2014).
Therefore, we are without jurisdiction to entertain Petitioner's second PCRA petition
because it is facially untimely to which no exception to the time -bar applies.
S:\Admin\NAGLE\Appeals\PIEDRA                   Erasmo 2nd Supp 1925 opinion Sur
2nd PCRA petition.docx

                                                   IN THE COURT OF COMMON PLEAS
COMMONWEALTH OF PENNSYLVANIA                       CHESTER COUNTY, PENNSYLVANIA



                    vs.
                                                   NO. CP-15-CR-0001234-2007;:1882-.·
                                                   2007; 1922-07; 1966-209/ .      ': :\
                                                                           .\_'//,·'.   \
                                                                                .,
          ERASMO M. PIEDRA                                                  :
                                                                                .\
              Appellant                            CRIMINAL ACTION               '>


                                                                                        (   i
                                                                                                _; .. ····
                                                                                                 .-
Nicholas J. Casenta, Chief Deputy District Attorney for the Commonwealth .. ) . ·,·,
Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove                              en



Nagle, S.J.                                                  October 19, 2015


                       RULE 1925 SECOND SUPPLEMENTAL OPINION


       We write briefly to supplement our Rule 1925 Supplemental

Opinion issued on October 19, 2015. On October 21, 2015, we received

in chambers, via the Clerk of Courts' office, Appellant's Concise

Statement of Matters Complained of on Appeal.                        I have reviewed the

statement issued by Appellant, in which he raises multiple issues not

previously raised in this second PCRA petition. In addition to the issues

raised in his second PCRA petition, Appellant's concise statement now

raises for the first time additional claims, including those challenging the

constitutionality of the PCRA statute with respect to the 60-day exception
to the one-year filing requirement, and the statute's alleged disparate

impact on illiterate, non- English speaking petitioners. See 42 Pa. C.S.A.

§9545(b)(1)(i)-(iii). We find it unnecessary to address those and the other

issues raised in the Concise Statement since we are without jurisdiction

to do so. We have previously addressed the time limitations applicable to

Petitioner's second PCRA petition, and have concluded his petition is

untimely filed. The PCRA's timeliness requirements are jurisdictional;

therefore, a court may not address the merits of the issues raised if the

petition was not timely filed. This rule applies regardless of the nature of

the individual claims asserted. Commonwealth v. Jones, 54 A.3d 14, 16-

17 (Pa. 2012) (case citations and footnote omitted). Further, as the

issues raised in the Concise Statement were not raised in Appellant's

second PCRA, or in his response to our Notice to Dismiss, I respectfully

submit those Errors Complained          of on Appeal   are waived.          See

Pa.R.A.P. 302(a).




                                                                ~.

                                                              ,/,/!~/'

                                                                     S.J.



                                    2
