J-S78022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GUSTAVO LOPEZ, JR.

                            Appellant                 No. 1011 MDA 2014


                Appeal from the PCRA Order November 24, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003408-2000


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 23, 2015

        Appellant Gustavo Lopez, Jr. appeals pro se from the order entered in

the Lancaster County Court of Common Pleas, which dismissed his petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On May 10, 2001, a jury convicted Appellant of robbery, robbery of a motor

vehicle, and conspiracy to commit robbery.2        On July 13, 2001, the court

sentenced Appellant to consecutive terms of 6-12 years’ incarceration for

robbery, 5-10 years’ incarceration for robbery of a motor vehicle, and 5-10

years’ incarceration for conspiracy.

____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 3701, 3702, 903, respectively.
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       Appellant filed post sentence motions on July 23, 2001, which the

court denied on October 10, 2001.3             On March 14, 2002, Appellant filed a

PCRA petition alleging his counsel was ineffective for failing to file a direct

appeal. On April 30, 2002, the court reinstated Appellant’s right to appeal

nunc pro tunc, and Appellant timely filed an appeal on May 17, 2002. On

December 18, 2002, this Court affirmed the judgment of sentence, and our

Supreme Court denied Appellant’s petition for allowance of appeal on March

30, 2004.

       Appellant filed a second PCRA petition on June 29, 2004. On July 12,

2004, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss the

petition without a hearing. Appellant did not respond to the Rule 907 notice,

and the court dismissed his petition. Appellant did not appeal.

       Appellant filed the present pro se PCRA petition on April 4, 2014. On

April 9, 2014, the court issued Rule 907 notice of its intent to deny the

petition without a hearing within 20 days. On May 7, 2014, Appellant filed

an appeal. The court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

complied on June 1, 2014.

       Appellant raises the following issues for our review:


____________________________________________


3
  Appellant initially filed a motion for post-verdict relief, but on July 25,
2001, the court issued an order stating Appellant’s motion for post-verdict
relief would be considered and adjudicated as a post sentence motion.



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         WAS NOT APPELLANT SENTENCED TO AN ILLEGAL
         SENTENCE THAT WAS AGGREGATED AND ENTERED
         [CONSECUTIVELY] AS OPPOSED TO CONCURRENTLY?

         WAS NOT TRIAL COUNSEL INEFFECTIVE AT TRIAL AND AT
         THE IMPOSITION OF SENTENCING?

         SHOULD APPELLANT’S SENTENCE BE REVIEWED AND
         VACATED/MODIFIED?

         WAS TRIAL COUNSEL INEFFECTIVE FOR NOT PRESENTING
         A FAIR [DEFENSE] TO APPELLANT AT TRIAL, AND FOR NOT
         OBJECTING TO THE IMPOSED SENTENCE?

         HAS THE TRIAL COURT ABUSED [ITS] DISCRETION IN
         DISMISSING THE FILED [PCRA PETITION] AND EVEN
         SETTING ASIDE THE TIMELINESS [WHEN] RELIEF SHOULD
         HAVE BEEN GRANTED PURSUANT TO 42 [PA.C.S.] § 9542
         WITH CLAIMS OF AN ILLEGAL SENTENCE[?]

         WAS PROSECUTORIAL MISCONDUCT CONDUCTED BY THE
         DISTRICT ATTORNEY AT TRIAL AND WITHIN THE
         SENTENCE[?]

         DOES APPELLANT MEET THE STANDARD UNDER THE
         STATUTE, SURPASSING THE TIMELINESS OF THE ONE (1)
         YEAR UNDER (PCRA)[?]

         [WHETHER] THE TRIAL COURT FAILED TO PLACE
         SUFFICIENT REASONS AND/OR FACTS ON THE RECORD AT
         SENTENCING TO JUSTIFY AND/OR SUPPORT THE
         SENTENCE IMPOSED, [ESPECIALLY] IN THE CONSECUTIVE
         SENTENCE[?]

         [WHETHER] THE TRIAL COURT, IN [IMPOSING] THE
         AGGREGATE [SENTENCE], IMPOSED A MANIFESTLY
         EXCESSIVE SENTENCE IN VIOLATION OF [APPELLANT’S]
         RIGHT[S] UNDER THE UNITED STATES CONSTITUTION
         AND PENNSYLVANIA CONSTITUTION, ARTICLE 1, SECTION
         13[?]

Appellant’s Brief at 4.




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     Before addressing the merits of Appellant’s claims, we must first

consider the timeliness of his PCRA petition, because it implicates the

jurisdiction of both this Court and the PCRA court.      Commonwealth v.

Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal denied, 50 A.3d 121

(Pa.2012). “Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.”   Id.    To “accord finality to the collateral

review process[,]” the PCRA “confers no authority upon this Court to fashion

ad hoc equitable exceptions to the PCRA timebar[.]”       Commonwealth v.

Watts, 23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the

PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011).

This Court may review a PCRA petition filed more than one year after the

judgment of sentence becomes final only if the claim falls within one of the

following three statutory exceptions, which the petitioner must plead and

prove:




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        § 9545. Jurisdiction and proceedings

                                 *    *    *

        (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 of sentence becomes final,
        unless the petition alleges and the petitioner proves that:
           (i) the failure to raise the claim 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).      Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

     Here, the court sentenced Appellant on July 13, 2001.          This Court

affirmed the judgment of sentence on December 18, 2002.         Our Supreme

Court denied Appellant’s petition for allowance of appeal on March 30, 2004,

and Appellant did not seek further review.     Thus, Appellant’s judgment of

sentence became final ninety days later, on June 28, 2004, upon expiration

of the time to file a petition for writ of certiorari with the United States


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Supreme Court. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant

filed his current PCRA petition on April 4, 2014, nearly ten years after his

judgment of sentence became final. Accordingly, Appellant’s current petition

is patently untimely.

      Appellant attempts to invoke the after-discovered evidence exception,

which requires proof of evidence that “could not have been ascertained by

the exercise of due diligence” within the time restrictions of the PCRA. He

states:

          Appellant did not become aware of the [s]entencing
          [c]laims until [almost] a decade later, and this was
          discovered by assistance that [A]ppellant has received.
          Therefore[,] when the [i]nformation became [a]vailable it
          was presented within a [t]imely manner, and pursuant to
          the statute of [s]ixty (60) days.

          In this instant [c]ase and appeal the [c]ourt imposed
          [s]entence(s) to total [s]ixteen to [t]hirty[-two] (32)
          years, and ordered to be served [c]onsecutively. This in
          [itself] was an abuse of discretion by the [t]rial [c]ourt.

Appellant’s Brief at 9.

      Although Appellant states in his brief that “[i]t was not until at this

later date that [A]ppellant [d]iscovered the [s]entence and [c]laims of

[illegality],” he does not specifically articulate whether he was unaware that

his sentences were consecutive or that he was unaware that he had a claim

of “illegality.”   At sentencing, the judge clearly explained Appellant’s

consecutive sentences. See N.T., 7/13/2001, at 17-18. Further, the judge

specifically apprised Appellant of his right to appeal, to file post sentence


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motions, and to obtain counsel. Id. at 18-19. Appellant proceeded to file a

counseled post sentence motion which states “[a]ll terms of imprisonment

are to be consecutive.     Petitioner’s aggregate sentence is 16 years to 32

years[’] incarceration in a state correctional institution.” Id. at 3.

      To the extent that Appellant alleges he did not become aware of his

sentencing claim until “almost a decade later,” he does not attempt to

explain how he could not have discovered the claim through the exercise of

due diligence.   Thus, Appellant fails to plead and prove this due diligence

exception.   See 42 Pa.C.S. § 9545(b)(1).       As a result, Appellant’s current

PCRA petition is time-barred.       See Williams, supra.        Accordingly, we

affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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