J-S57009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
PAUL SERRANO, III                         :
                                          :
                   Appellant              :   No. 1080 EDA 2017

         Appeal from the Judgment of Sentence February 21, 2017
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0001487-2007


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                         FILED NOVEMBER 01, 2017

      Appellant, Paul Serrano, appeals from the judgment of sentence

entered after his second plea of guilty to first degree murder. His first guilty

plea was withdrawn after a PCRA court determined that it had been

unknowingly entered. After careful review, we conclude that the PCRA court

lacked jurisdiction to void Serrano’s first guilty plea, and therefore quash.

      Our disposition of this appeal requires a detailed recitation of the

procedural history of this case. In 2007, the Commonwealth charged

Serrano with the murder of Kevin Muzila. At the time he was arrested and

charged, Serrano was 18 years old; at the time he murdered Muzila, he was

17. The Commonwealth mistakenly charged Serrano as an adult, and gave

notice of its intent to seek the death penalty.
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      However, in 2005 the Supreme Court of the United States had

declared   that   sentencing   a   juvenile   offender   to   death   violated   the

Constitution’s prohibition on cruel and unusual punishments. See Roper v.

Simmons, 543 U.S. 551 (2005). Serrano unknowingly agreed to plead

guilty to first-degree murder and waive his right to file a direct appeal in

exchange for the Commonwealth’s promise to waive its right to pursue the

now-illegal death sentence. As a result, he received the only other possible

sentence under existing Pennsylvania law, life without the possibility of

parole.

      In 2009, Serrano filed a pro se Post Conviction Relief Act (“PCRA”)

petition, asserting that his guilty plea counsel were ineffective for failing to

inform him that he was not eligible for the death penalty under Roper. He

further requested the appointment of counsel to assist him. The PCRA court

swiftly dismissed the petition as untimely under Pa.R.Crim.P. 901(A) without

appointing counsel or holding a hearing.

      Pursuant to 42 Pa.C.S.A § 9545(b)(1), a PCRA petition must be filed

within one year from the day the petitioner’s judgment became final.

Serrano did not file a direct appeal from his judgment of sentence, so it

became final on Thursday, September 13, 2007, 30 days after its entry. See

Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Thus,

Serrano would have been required to file his first petition on or before




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Monday, September 15, 2008. He did not file his first petition until April 16,

2009.

        However,   exceptions   to   the   timeliness   requirement   exist.   See

Pa.C.S.A. § 9545(b)(1)(i)-(iii). Serrano was entitled to have counsel

appointed to assist him in the prosecution of his first PCRA petition to

determine if any of these exceptions applied. See Commonwealth v.

Smith, 818 A.2d 494, 499 (Pa. 2003). As noted, the PCRA court dismissed

Serrano’s petition as untimely without providing him counsel.

        In 2016, Serrano filed a counseled, second PCRA petition asserting

that his sentence of life without possibility of parole was illegal pursuant to

Miller v. Alabama, 567 U.S. 460 (2012) (ruling imposition of mandatory

life without parole sentences on juvenile offenders is unconstitutional), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (finding the rule

announced in Miller to be applied retroactively on collateral review). This

petition did not address the jurisdictional timeliness requirement of the

PCRA.

        After an off-the-record discussion, the PCRA court appointed new

counsel to represent Serrano, approved the hiring of a private investigator,

and permitted the filing of an amended petition. In the amended petition,

Serrano asserted that his guilty plea should be voided, as he was unaware

that he was ineligible for the death penalty. He also reiterated that his

sentence was unconstitutional pursuant to Miller and Montgomery. The


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amended petition also does not address the jurisdictional timeliness

requirement of the PCRA.

       The    Commonwealth         conceded      that   Serrano’s   guilty   plea   was

unknowing and agreed to allow him to withdraw it. See Trial Court Order,

11/4/16. The Commonwealth initially offered a new plea agreement whereby

Serrano would receive a thirty year to life sentence if he pled guilty

immediately. See N.T., PCRA Hearing, 11/2/16, at 6-7. Serrano rejected the

agreement, and was granted a new trial. See id., at 12. Furthermore, new

counsel1 was appointed to represent Serrano at trial. See id.

       Serrano filed an omnibus pretrial motion seeking a change in venue,

discovery, and a clarification of sentencing options. Regarding sentencing

options, Serrano argued that he could not be sentenced under 18 Pa.C.S.A.

§ 1102.1, as it would constitute an impermissible ex post facto increase in

his penalty. The trial court denied these motions, and scheduled the case for

trial. See Trial Court Order, 2/17/17. On February 21, 2017, Serrano

entered into a negotiated guilty plea to first degree murder. In exchange, he

received a sentence of 35 years to life. This appeal followed.

       On appeal, Serrano contends that a sentence of 20 to 40 years in

prison is the maximum sentence he can receive. However, we do not reach

____________________________________________


1 Counsel who filed the amended 2016 petition informed the court that he
could not proceed in the matter, as he would suffer from a clear conflict of
interest.



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this issue, as we conclude that the PCRA court did not have jurisdiction to

void Serrano’s initial guilty plea.

      We may raise issues concerning our jurisdiction over an appeal sua

sponte. See Roman v. McGuire Memorial, 127 A.3d 26, 31 (Pa. Super.

2015),   appeal    denied,   134      A.3d   57   (Pa.   2016).   “PCRA   timeliness

requirements are jurisdictional in nature and, accordingly, a court cannot

hear untimely PCRA petitions.”         Commonwealth v. Flanagan, 854 A.2d

489, 509 (Pa. 2004) (citations omitted).

      As noted, Serrano’s first PCRA petition, filed April 16, 2009, was

untimely and did not allege any exceptions to the PCRA’s time bar. Thus,

Serrano’s 2016 initial petition and the amendment are also facially untimely.

Neither of the 2016 petitions assert any exception to the PCRA’s time bar.

      While there is a conspicuous absence in the record of reasons for why

the Commonwealth conceded to, and the PCRA court granted, Serrano’s

desire to withdraw his guilty plea, we can understand the impetus behind

these decisions. Clearly, guilty plea counsel were ineffective for failing to

advise Serrano that he was ineligible for the death penalty at the time he

pled guilty. Furthermore, it is clear there was a breakdown in the operations

of the court when the PCRA court failed to afford Serrano his Rule-based

right to counsel for his first petition.

      However, it is also clear that the PCRA court lacked jurisdiction, at this

juncture, to entertain any of these three petitions. If a PCRA petition is


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facially untimely, the petitioner must plead and prove the applicability of one

of three timeliness exceptions in order to invoke the jurisdiction of the PCRA.

See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Here, none of Serrano’s petitions pled, let alone proved, the applicability of a

timeliness exception.

      “Where a court is without jurisdiction it is without power to act and

thus, any order that it issues is null and void.” Commonwealth v. Morris,

771 A.2d 721, 735 (Pa. 2001) (citations omitted). The PCRA court’s order

withdrawing Serrano’s guilty plea was a nullity. The ensuing proceedings are

therefore a nullity, as Serrano’s initial judgment of sentence is still effective.

Thus, Serrano’s appeal from a non-existent judgment of sentence is also a

nullity. See Commonwealth v. Spencer, 496 A.2d 1156, 1160 (Pa. Super.

1985). We are constrained to quash this appeal.

      We note that, as a consequence, Serrano’s amended second PCRA

petition is still pending. We do not address whether it may be further

amended to plead appropriate timeliness exceptions. That is for Serrano’s

counsel to develop, and the PCRA court to decide.

      Appeal quashed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2017




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