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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
RANGEL VANGAS,                              :          No. 3498 EDA 2016
                                            :
                          Appellant         :


                 Appeal from the PCRA Order, October 11, 2016,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0810731-1998


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED APRIL 17, 2018

      Rangel Vangas (“appellant”) appeals pro se from the order of the

Court of Common Pleas of Philadelphia County that dismissed his second

petition   filed   pursuant   to   the   Post   Conviction   Relief   Act   (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546.         Because we agree with the PCRA court that

appellant’s facially untimely petition failed to establish a statutory exception

to the one-year jurisdictional time limit for filing a petition under the PCRA,

we affirm.

      The PCRA court set forth the following procedural history in its opinion

filed January 25, 2017:

                   On September 15, 2000, [appellant] was
             convicted of third-degree [murder] and attempted
             arson before the Honorable Jane Cutler Greenspan.
             On November 8, 2000, [appellant] was sentenced to
             a term of imprisonment of twenty (20) to forty (40)
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          years upon the third-degree murder conviction and a
          consecutive term of imprisonment of one year (1) to
          five (5) years upon the attempted arson conviction.
          [Appellant] did not file an appeal.

                 On March 22, 2001, [appellant] filed a pro se
          petition for post[-]conviction relief, requesting a
          nunc pro tunc direct appeal. On September 2,
          2001, the trial court granted the petition and
          [appellant] appealed his judgment of sentence
          nunc pro tunc. The Superior Court affirmed the
          judgment of sentence on June 26, 2002, and our
          Supreme Court denied appellant’s petition for
          allowance     of    appeal    on      October    31,
          2002.[Footnote 2]

               [Footnote   2]    Commonwealth  v.
               Vangas, 806 A.2d 467 (Pa.Sup[er].
               2002)    (unpublished memorandum),
               appeal denied, 812 A.2d 1229 (Pa.
               2002).

               On October 29, 2003, [appellant] filed a
          pro se PCRA petition. Charles Peruto, Jr., Esquire[,]
          was appointed to represent him. Mr. Peruto filed an
          amended petition on July 27, 2004, and the
          Commonwealth filed a motion to dismiss on
          November 9, 2004. After review on January 13,
          2005, the trial court dismissed his PCRA petition.
          The Superior Court affirmed the dismissal on
          December 29, 2005, and the Supreme Court denied
          his petition for allowance of appeal on May 31,
          2006.[Footnote 3]

               [Footnote 3]    Commonwealth   v.
               Vangas, 894 A.2d 824 (Pa.Sup[er].
               2005) (unpublished memorandum[)],
               appeal denied, 899 A.2d 1124 (Pa.
               2006).

                On August 18, 2015, [appellant] filed the
          instant pro se PCRA petition. In accordance with
          Pennsylvania Rule of Criminal Procedure 907,
          [appellant] was served notice of the PCRA court’s


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            intention to dismiss his petition on June 11, 2016.
            [Appellant] submitted a response to the Rule 907
            notice on July 7, 2016. On October 11, 2016, the
            PCRA court dismissed his PCRA petition as
            untimely.[Footnote 4] On October 18, 2016, the
            instant notice of appeal was timely filed to the
            Superior Court.[Footnote 5]

                  [Footnote 4] The order was issued more
                  than twenty days after [appellant] was
                  served with notice of the forthcoming
                  dismissal of his Post Conviction Relief Act
                  petition. Pa.R.Crim.P. 907.

                  [Footnote 5] As the trial judge is no
                  longer sitting, the Honorable Leon W.
                  Tucker issued the order and opinion in
                  this matter in his capacity as Supervising
                  Judge of the Criminal Section of the
                  Court of Common Pleas of Philadelphia –
                  Trial Division as of March 7, 2016.

Trial court opinion, 1/25/17 at 1-2.1

      Appellant raises the following issues for this court’s review:

            1.    Did the [PCRA c]ourt err in finding
                  [appellant’s] Petition for Post Conviction Relief
                  [u]ntimely    and     lacking   subject   matter
                  jurisdiction when the [trial c]ourt failed to
                  transfer the matter construed as a Petition for
                  Writ of Habeas Corpus to the proper
                  jurisdiction  of    the    Supreme    Court    of
                  Pennsylvania      under     the    premise     of
                  42 Pa.C.S.A. § 6501 et seq.?

            2.    Did the [PCRA c]ourt err in denying [appellant]
                  Post Conviction/Habeas Corpus Relief when
                  [appellant] was sentenced to a redefined
                  classification of 18 Pa.C.S.A. § 106(a)(1);
                  (b)(1)       allowing  [m]urder      of     the

1 The record reflects that the trial court did not order appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).


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                  [t]hird[-]degree to be expanded beyond its
                  constitutional   limitation for which  the
                  Commonwealth retains no statutory authority
                  to detain [appellant]?

Appellant’s brief at 5 (extraneous emphasis omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that     judgment   of    sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period
            for filing a PCRA petition can be extended only if the
            PCRA permits it to be extended, i.e., by operation of


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              one of the statutorily enumerated exceptions to the
              PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

        As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

        In the instant case, the trial court sentenced appellant on November 8,

2000.     This court affirmed the judgment of sentence on June 26, 2002.

Commonwealth v. Vangas, 806 A.2d 467 (Pa.Super. 2002) (unpublished

memorandum). Our supreme court denied appellant’s petition for allowance

of appeal on October 31, 2002. Commonwealth v. Vangas, 812 A.2d 1229

(Pa. 2002).   Appellant’s judgment of sentence became final on January 29,

2003, ninety days after the Pennsylvania Supreme Court denied appellant’s

petition, and the time for filing a writ of certiorari in the United States

Supreme Court expired.      U.S. Sup. Ct. R. 13.   Appellant’s current petition

was filed on August 18, 2015, more than 11 years after a PCRA petition

could be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

        As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:




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            (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.A. § 9545(b)(1)(i)-(iii).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      Here, appellant advances no argument that he meets one of the

exceptions to the timeliness requirement.         Instead, he argues that his

petition should have been considered a writ of habeas corpus, and the trial

court should have transferred the petition to the United States Supreme

Court.   As appellant has filed a facially untimely petition and has failed to

plead and prove an exception to the timeliness requirement, this court lacks

jurisdiction to hear his appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/17/18




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