J-S77020-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICKY TEJADA

                            Appellant                 No. 332 EDA 2014


                Appeal from the PCRA Order December 18, 2013
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0000570-2001


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 22, 2014

        Ricky Tejada appeals from the order of the Court of Common Pleas of

Lehigh County dismissing as untimely his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

        On August 15, 2001, a jury convicted Tejada of one count of

attempted criminal homicide,1 one count of attempted criminal homicide with

serious bodily injury,2 two counts of aggravated assault,3 one count of

simple assault,4 and one count of recklessly endangering another person.5

On October 15, 2001, the trial court sentenced Tejada to: 20 to 40 years’
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 901(a); 2501.
2
    18 Pa.C.S. §§ 901(a); 2501.
3
    18 Pa.C.S. §§ 2702(a)(4), (1).
4
    18 Pa.C.S. § 2701(a)(1).
5
    18 Pa.C.S. § 2705.
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imprisonment on the attempted criminal homicide conviction; 10 to 20

years’ imprisonment on the attempted criminal homicide with serious bodily

injury conviction; 5 to 10 years’ imprisonment on the first aggravated

assault conviction; 10 to 20 years’ imprisonment on the second aggravated

assault conviction; 1 to 2 years’ imprisonment on the simple assault

conviction; and 1 to 2 years imprisonment on the recklessly endangering

another person conviction.        The sentences were to run concurrent to each

other. On October 9, 2003, this Court affirmed the sentence. Tejada did

not appeal to the Pennsylvania Supreme Court.

       On June 24, 2013, Tejada filed the current PCRA petition, his third.6

The PCRA court issued a notice of intent to dismiss the PCRA petition

pursuant to Pennsylvania Rule of Criminal Procedure 907. On December 18,

2013, the court dismissed the petition. Tejada appealed.       Tejada and the

trial court complied with Pennsylvania Rule of Appellate Procedure 1925(a).

       On appeal, Tejada raises the following claims:

          [(1)] [I]f the [I]nterstate [A]greement on [D]etainers
          [A]ct (“I.A.D.”) codified in 42 Pa.C.S.A. §§ 9101[,] et
          seq.[,] are the express terms and conditions governing the
____________________________________________


6
  Tejada filed a timely first PCRA petition, which the PCRA court dismissed.
This Court affirmed the dismissal, and the Pennsylvania Supreme Court
denied Tejada’s petition for allowance of appeal. On December 15, 2010,
Tejada filed a “Writ of Error Coram Nobis.” The PCRA court treated this writ
as a PCRA petition, and denied relief. Tejada filed an untimely notice of
appeal, and this Court quashed the appeal. The Supreme Court denied his
petition for review.




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         extradition process does such policy or principle codified in
         42 Pa.C.S.A §§ 9101[,] et seq.[,] serve as the governing
         rule, by virtue of it being a contract, when it mandates
         dismissal of criminal cases due to the terms and conditions
         of the I.A.D. contract being stultified or impaired which
         divest or causes the tribunal the lost [sic] of jurisdiction?

         [(2)] By appellant having an illegal sentence, should trial
         court have conducted a [sic] evidentiary hearing on the
         illegal sentencing issue due to post trial counsel
         abandonment 42 Pa.C.S.A. § 9543(a)(4) of such illegal
         sentencing issue [at trial transcripts N.T. Page 23] being
         raised by appellant, a pro-se prisoner layman, since an
         illegal sentence issue can never be waived?

         [(3)] Since the trial transcripts notes of testimony fail to
         evidence the mens rea or scienter termed elements of an
         offense, a requisite for conviction, translates as a fatal
         variance between the wording of the information and the
         proof at trial, undermining the truth determining process
         that no reliable adjudication of guilt or innocence could
         have taken place?

         [(4)] [D]id the imposition of a technology employed on
         appellant during trial, to wit, some “stun belt,” the adverse
         impact on appellant [sic] [S]ixth [A]mendment right to be
         present at trial, the force (“stun belt”) impeding on
         appellant’s right to be present at trial and thereby
         participate, which was a [sic] issue abandoned by post trial
         counselor and cognizable under the PCRA?

Appellant’s Brief at 5-6.

      Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Monaco, 996 A.2d at


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1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is 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).

      Three exceptions to the PCRA’s statute of limitations exist.             The

exceptions allow for very limited circumstances under which a court may

excuse the late filing of a PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco,

996 A.2d at 1079.     The late filing of a petition will be excused if a petitioner

alleges and proves:

            (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)-(iii). If invoking an exception outlined above, the

petition must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).




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       Tejada’s judgment of sentence became final on November 10, 2003.7

See 42 Pa.C.S. § 9545(b)(3) (judgment is final at the conclusion of direct

review or at the expiration of time for seeking review). Tejada had one year

from that date, i.e., November 10, 2004, to file a timely PCRA petition. See

42 Pa.C.S. § 9545(b)(1). He did not file this PCRA petition until June 24,

2013, more than nine years after his judgment of conviction became final.

       Further, Tejada fails to allege and prove any of the exceptions to the

PCRA limitations period. He alleges neither any interference by government

officials, nor any after-acquired evidence, and his claim of a new

constitutional right that applies retroactively fails.

       In support of his claim that the recognition of a new right renders the

sentence illegal, Tejada relies on Alleyne v. United States, --- U.S. ---,

133 S.Ct. 2151 (2013). This Court has found that Alleyne cannot provide

relief from the PCRA time bar because it did not announce a new

constitutional right found to be retroactive. Commonwealth v. Miller, --

A.3d ---, 2014 Pa.Super. 214, at *5 (Pa.Super. Sept. 26, 2014). Further,

Alleyne is inapplicable. In Alleyne, the Supreme Court of the United States

found that “any fact that increases the mandatory minimum is an ‘element’

that must be submitted to the jury.” 133 S.Ct. at 2155. Tejada maintains
____________________________________________


7
 November 8, 2003, the thirtieth day following Tejada’s conviction, was a
Saturday. Therefore, his conviction became final on Monday, November 10,
2003.




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his sentence exceeded the maximum sentence. Appellant’s Brief at 5.      He

makes no claim that the trial court imposed a mandatory minimum

sentence, and the record establishes that the trial court did not apply a

mandatory minimum to his sentence. Id.; Notes of Testimony, 5/29/2011.

     Therefore, as the PCRA petition is untimely, and Tejada fails to allege

and prove any exception to the one-year time limitation, we affirm the PCRA

court’s order dismissing the PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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