J-S07014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

PEDRO CARRASQUILLO,

                          Appellant                  No. 2121 EDA 2017


             Appeal from the PCRA Order Entered June 1, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000452-2008


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

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 23, 2018

      Appellant, Pedro Carrasquillo, appeals pro se from the post-conviction

court’s June 1, 2017 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 necessary to our

disposition of his appeal.     The PCRA court summarized the pertinent

procedural history of this case, as follows:

             On January 30, 2009, [Appellant] pled guilty to involuntary
      deviant [sic] sexual intercourse, robbery, burglary, and criminal
      conspiracy. This court sentenced him to an aggregate term of 15
      to 30 years[’] incarceration. [Appellant] did not pursue a direct
      appeal, instead filing a … []PCRA[] petition on July 31, 2009. His
      petition was formally dismissed on July 9, 2010[,] and this court
      issued an opinion on December 15, 2010. On May 20, 2011, the
      Superior Court dismissed his appeal for failure to file a brief.
      Thereafter, [Appellant] has made several filings, most recently the
      instant PCRA petition on August 19, 2016. This court issued a
      notice of [its] intent to dismiss the petition pursuant to
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      Pennsylvania Rule of Criminal Procedure 907 on May 1, 2017. The
      petition was formally dismissed on June 1, 2017. [Appellant] filed
      a notice of appeal to the Superior Court on June 1[9], 2017.

PCRA Court Opinion (PCO), 8/30/17, at 1.

      It seems that Appellant attached to his notice of appeal a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, despite not

being ordered to file that statement by the PCRA court. On August 30, 2017,

the PCRA court issued an opinion addressing the issues presented in

Appellant’s Rule 1925(b) statement.        Herein, Appellant presents three

questions for our review, which we reproduce verbatim:

      A. The Court of Common Pleas, Criminal Division lacked
         jurisdiction over the Appellant by sentencing him under the
         Sixth Edition. The Six Edition were not in effect at the time of
         his offense. The Fifth Edition was in full effect, Appellant’s
         sentence is illegal, wrong guidelines and he is entitled to be
         resentenced “ex post facto clauses art?

      B. The court err in violation of the United States Constitution, the
         Pennsylvania Constitution and their treaties made. Under the
         due process and equal protection of the laws, state and federal
         constitutions. The Appellant was sentenced to a multiple
         offenses pursuant to the mandatory minimum scheme deemed
         facially unconstitutional?

      C. Was trial counsel ineffective for failing to guarantee Appellant
         his constitutional right to an appeal?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      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

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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
            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).    Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could have

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

      Here, Appellant’s judgment of sentence became final on June 19, 2011,

at the expiration of the thirty day time period for seeking review with the



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Pennsylvania Supreme Court after this Court dismissed his direct appeal due

to his failure to file a brief. See 42 Pa.C.S. § 9545(b)(3) (stating a judgment

of sentence becomes final at the conclusion of direct review or the expiration

of the time for seeking the review); Pa.R.A.P. 1113(a) (directing that “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days of the entry of the order of the Superior Court

sought to be reviewed”). Accordingly, Appellant’s present PCRA petition, filed

in August of 2016, is patently untimely, and for this Court to have jurisdiction

to review the merits thereof, Appellant must prove that he meets one of the

exceptions to the timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

       Instantly, Appellant does not argue the applicability of any of the above-

stated exceptions. Instead, the thrust of his arguments challenge the legality

of his sentence, and allege ineffective assistance of his trial counsel. Such

claims do not, in and of themselves, meet a PCRA timeliness exception. See

Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (“It is well

settled that allegations of ineffective assistance of counsel will not overcome

the jurisdictional timeliness requirements of the PCRA.”) (citations omitted);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding that claims

challenging the legality of sentence are subject to review within the PCRA, but

must first satisfy the PCRA’s time limits).1

____________________________________________


1To the extent Appellant also raises cursory challenges to the discretionary
aspects of his sentence, such issues are not cognizable under the PCRA. See



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       We also note that Appellant cannot satisfy the ‘new retroactive right’

exception of section 9545(b)(1)(iii) with his sentencing challenge premised on

Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts

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

and found beyond a reasonable doubt). Our Supreme Court has held that

Alleyne does not apply retroactively to collateral attacks on mandatory

minimum sentences. Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016).

       Accordingly, we ascertain no error in the PCRA court’s conclusion that

Appellant’s petition is untimely and he fails to meet any exception under

section 9545(b). Therefore, the court properly dismissed Appellant’s petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/18




____________________________________________


Commonwealth v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007)
(“Challenges to the discretionary aspects of sentencing are not cognizable
under the PCRA.”) (citations omitted); see also 42 Pa.C.S. § 9543(a)(2).

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