J-S03009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

NATHAN ROSARIO,

                          Appellant                   No. 584 EDA 2018


           Appeal from the PCRA Order Entered January 16, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0511231-2001

BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 03, 2019

      Appellant, Nathan Rosario, appeals pro se from the post-conviction

court’s January 16, 2018 order denying, as untimely, his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The facts underlying Appellant’s conviction are not relevant to his

present appeal. The PCRA court summarized the pertinent procedural history

of his case in its Pa.R.A.P. 1925(a) opinion, as follows:

            On September 12, 2001, [Appellant] appeared before the
      Honorable James J. Fitzgerald III, and pleaded guilty to charges
      pursuant to the above four listed Bills of Information, which
      charged, inter alia, two counts of robbery, burglary, two counts of
      aggravated assault, possessing an instrument of crime, generally,
      criminal trespass, two counts of terroristic threats, and two counts
      of unlawful restraint [at docket number] CP-51-CR-0710141-
      2001[;] robbery and burglary [at docket number] CP-51-CR-
      0710691-2001[;] robbery [at docket number] CP-51-CR-
      0710701-2001[;] and involuntary deviate sexual intercourse,
      burglary, robbery, and possessing an instrument of crime [at
      docket number] CP-51-CR-0511231-2001. Following the entry of
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     these pleas, [Appellant] filed a Motion to withdraw the guilty
     pleas. On October 10, 2002, Judge Fitzgerald granted the motion
     in part and permitted him [to] withdraw the pleas entered as of
     CP-51-CR-0710701-2001 and CP-51-CR-0710141-2001.2
        2 Subsequent to the withdrawal of said pleas, the
        Commonwealth nol prossed all of the charges [at docket
        number] CP-51-CR-0710701-2001.

           On October 29, 2002, Judge Fitzgerald sentenced
     [Appellant] to an aggregate term of incarceration of 25 to 50 years
     on CP-51-CR-0710691-2001 and CP-51-CR-0511231-2001. On
     November 5, 2002, [Appellant] filed a motion to reconsider the
     sentence imposed upon him as well as the order denying the
     motion to withdraw the pleas entered as of CP-51-CR-0710691-
     2001 and CP-51-CR-0511231-2001. Judge Fitzgerald denied the
     motion on January 17, 2003, following which [Appellant] filed a
     [n]otice of [a]ppeal. On November 17, 2003, the Superior Court
     dismissed that appeal for his failure to file a brief. (No. 699 EDA
     2003).

            With regard to CP-51-CR-0710141-2001, [Appellant] was
     tried before the Honorable Willis Berry. On October 6, 2003, the
     jury convicted him of two counts of robbery, burglary, two counts
     of aggravated assault, possession of an instrument of crime,
     criminal trespass, two counts of terroristic threats, and two counts
     of unlawful restraint. That same date, Judge Berry sentenced
     [Appellant] to an aggregate term of incarceration of 18 to 36
     years[’ incarceration]. [Appellant] filed … [an] appeal, which the
     Superior Court dismissed on May 19, 2005, based on the failure
     to file a brief. (No. 3343 EDA 2003).

            On September 17, 2007, [Appellant] filed an untimely
     counseled petition pursuant to the … PCRA ….         [Appellant]
     contended that prior counsel provided him with ineffective
     assistance of counsel for failing to file appellate briefs and
     requested that his appellate rights be reinstated; [Appellant]
     thereafter filed on October 11, 2007, a supplemental petition
     asserting that the late filing of his PCRA should be excused
     because prior counsel abandoned him by failing to preserve or
     move to reinstate his appellate rights. On May 28, 2009, Judge
     Berry dismissed the petition after finding that the petition and
     supplement had been untimely filed. [Appellant] appealed to the
     Superior Court, which affirmed the order dismissing the PCRA
     petition on November 15, 2010 (No. 1745 EDA 2009). [Appellant]


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      thereafter filed a petition for allowance of appeal that was denied
      by the Pennsylvania Supreme Court on May 12, 2011. (696 EAL
      2010).

             On December 29, 2014, [Appellant] filed a second PCRA
      petition, which [was] docketed at CP-51-CR-070141-2001 and
      CP-51-CR:0710701-2001, wherein he accused Judge Berry of
      judicial misconduct during his trial.    This Court, which was
      administratively assigned to decide the matter because Judge
      Berry was no longer a judge, dismissed that petition on September
      3, 2015, because it had been untimely filed. [Appellant] did not
      file an appeal.

            On July 14, 2016, [Appellant] filed his third PCRA petition.
      In it he contended that the mandatory minimum sentence
      imposed upon him was illegal based on the decision handed down
      by the United States Supreme Court in Alleyne v. United States,
      570 U.S. 99 (2013). On January 16, 2018, this [c]ourt issued an
      order dismissing the petition on timeliness grounds. [Appellant]
      thereafter filed a timely notice of appeal.

PCRA Court Opinion (PCO), 2/26/18, at 1-3 (one footnote omitted).

      We observe that Appellant filed a single, pro se notice of appeal listing

only one docket number - CP-51-CR-0511231-2001 - the case in which he

was convicted of involuntary deviate sexual intercourse, burglary, robbery,

and possessing an instrument of crime.     Therefore, despite that the cover

sheet of his appellate brief lists the docket numbers of all four of the cases

discussed above, our jurisdiction is limited to his case at docket number CP-

51-CR-0511231-2001. See Commonwealth v. Hardy, 99 A.3d 577, 579

(Pa. Super. 2014) (concluding that we only had jurisdiction to review the

sentence imposed at the docket number listed on the notice of appeal) (citing,

inter alia, Commonwealth v. Tuck, 469 A.2d 644, 646 n.1 (Pa. Super. 1983)

(limiting consideration of the claim on appeal to only that bill of information

listed in the notice of appeal)).

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      In Appellant’s pro se brief, he raises two questions for our review, which

we reproduce verbatim:

      A. Is the Court of Common Pleas, and the Superior Court wrong
         in their decision to deny the defendant ineffective assistance of
         counsel for abandoning petitioner?

      B. Is the defendant’s sentence illegal as it stands?

Appellant’s Brief at 4.

      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


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              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). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).1

       Here, Appellant’s judgment of sentence became final in 2003, after this

Court dismissed his direct appeal based on his failure to file a brief. Thus,

Appellant’s present petition, filed in July of 2016, is clearly untimely, and

Appellant must plead and prove the applicability of one of the above-stated

exceptions.

       Appellant first argues that the attorney he retained to represent him on

appeal from his judgment of sentence acted ineffectively by not filing a brief

on his behalf. Appellant correctly notes that in Bennett, our Supreme Court

held that such abandonment by counsel can satisfy the newly-discovered fact

exception of section 9545(b)(1)(ii). However, Appellant previously litigated
____________________________________________


1 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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this exact same Bennett claim in his first PCRA petition filed in 2007. That

petition was denied, and we affirmed on appeal, concluding that Appellant had

not acted with due diligence in learning the ‘new fact’ of his counsel’s

abandonment.      See Commonwealth v. Rosario, No. 1745 EDA 2009,

unpublished memorandum at 8-9 (Pa. Super. filed Nov. 15, 2010).                   Our

Supreme Court denied Appellant’s subsequent petition for allowance of appeal

from our decision. Thus, because Appellant’s claim that he meets the newly-

discovered fact exception of section 9545(b)(1)(ii) has been previously

litigated and rejected, he is not entitled to relief herein.

      Appellant next argues that he is serving a sentence rendered illegal by

Alleyne, in which the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. However,

before we can review the legality of Appellant’s sentence, he must first satisfy

a   timeliness   exception    to   invoke    this   Court’s    jurisdiction.      See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999). Appellant fails to

meet this burden.     First, he does not attempt to plead or prove that any

timeliness exception applies to his legality of sentencing claim.              Second,

Alleyne-based claims cannot meet the new constitutional rule exception of

section 9545(b)(1)(iii), which requires the petitioner to “prove that there is a

‘new’ constitutional right and that the right ‘has been held’ by that court to

apply retroactively.” Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501

(Pa. 2002). Our Supreme Court has expressly declared “that Alleyne does

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not   apply    retroactively   to   cases    pending   on   collateral   review….”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016) (emphasis

added).   Thus, we are without jurisdiction to review Appellant’s illegal

sentencing claim.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/19




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