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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                          :
                                         :
                                         :
LUIS NESTOR MARTINEZ,                    :
                                         :
                   Appellant             :   No. 2081 EDA 2017

                 Appeal from the PCRA Order May 31, 2017
           in the Court of Common Pleas of Northampton County,
            Criminal Division at No(s): CP-48-CR-0003442-2010

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 27, 2018

      Luis Nestor Martinez (“Martinez”), pro se, appeals from the Order

dismissing his second Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In June 2011, Martinez pled guilty to a multitude of offenses (including

robbery, kidnapping and aggravated assault), stemming from a home

invasion wherein Martinez and his co-conspirator robbed, bound, and

tortured the victims. This Court affirmed Martinez’s judgment of sentence.

See Commonwealth v. Martinez, 60 A.3d 562 (Pa. Super. 2012)

(unpublished memorandum). Martinez did not seek allowance of appeal.

      Martinez filed his first PCRA Petition in July 2013, which the PCRA

court later denied. This Court affirmed, after which the Supreme Court of

Pennsylvania denied allowance of appeal.           See Commonwealth v.
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Martinez, 120 A.3d 1056 (Pa. Super. 2015) (unpublished memorandum),

appeal denied, 126 A.3d 1283 (Pa. 2015).

       On February 23, 2017, Martinez filed the instant, pro se PCRA Petition,

his second.     The PCRA court later issued a thorough Pennsylvania Rule of

Criminal Procedure 907 Notice of Intent to Dismiss the Petition without an

evidentiary hearing (hereinafter “Rule 907 Notice”), stating that the court

lacked jurisdiction to address the Petition because it was untimely filed.

Martinez filed a pro se Response to the Rule 907 Notice. On May 31, 2017,

the PCRA court dismissed the PCRA Petition, after which Martinez filed a

timely Notice of Appeal.1

       Martinez now presents the following issues for our review:

       1. In light of the [Pennsylvania] Supreme Court’s explicit
          reiteration in Commonwealth v. Burton[, 158 A.3d 618 (Pa.
          2017),] that the untimeliness or serial nature of a PCRA
          Petition are not grounds for summary dismissal under
          Pa.R.Crim.P[.] 907, did the [PCRA] court’s dismissal of the
          underlying PCRA Petition, based on untimeliness grounds, and
          without conducting the required “miscarriage of justice”
          inquiry, and/or without ordering the Commonwealth to file an
          Answer and Motion to dismiss raising untimeliness as a
          rebuttable affirmative defense, constitute a denial of federal
          due process and equal protection under the law[,] and equal
          protection under the Burton[] rule and 42 Pa.C.S.A.
          [§] 9543(b), and has the Commonwealth forfeited and/or
          waived the affirmative defense of untimeliness on appeal by
          not asserting the defense below?


____________________________________________


1 The PCRA court did not order Martinez to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. However, Martinez filed a pro
se Concise Statement contemporaneously with his Notice of Appeal.


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       2. Do the 1995 procedural amendments to 42 Pa.C.S.A.
          [§] 9545(b)(1)-(4) … violate the Tenth and Fourteenth
          Amendments of the U.S. Constitution[,] where they were
          implemented by the PA General Assembly for the purpose of
          opting in to the federal habeas corpus regulatory program of
          Title I of [the federal Antiterrorism and Effective Death
          Penalty Act of 1996], and has 42 Pa.C.S.A. [§] 9545(1)(iii),
          pursuant to [the] Supremacy Clause at Article VI, Clause 2 of
          the federal Constitution[,] been rendered of no further force
          or effect[,] in light of the U.S. Supreme Court’s
          announcement of the “function of the rule” test, restoring the
          retroactivity principles of Teague v. Lane[, 489 U.S. 288
          (1989),] back to its original equitable purpose?

       3. Did [Martinez’s] after[-]discovered fact of being prosecuted
          under the mandates of VOI[/]TIS[2] satisfy the [Pennsylvania]
          Supreme Court’s holding in Burton[, supra,] and
          [Commonwealth v.] Martinez[, 147 A.3d 517 (Pa. 2016)],
          and the [Pennsylvania Superior] Court’s holding in
          [Commonwealth v.] Ritz[, 153 A.3d 336 (Pa. Super.
          2016),] and was it a violation of [Martinez’s] federal
          constitutional rights under Article I, Section 10, the Sixth,
          Tenth and Fourteenth Amendments [to the federal
          Constitution, and his Pennsylvania] Constitutional right under
          Article I, Section 17, where [Martinez] did not receive the
          benefit of his 2011 plea agreement because he was sentenced
          under the mandates of []TIS, and because his mandatory
          statutory/guideline minimum sentences were aggravated
          based on facts not charged in the Information or admitted by
          [Martinez,] in violation of the retroactive case of Alleyne v.
          U.S.[, 133 S. Ct. 2151 (2013)]?

       4. Where [Martinez] asserted, as a miscarriage of justice, that
          the Commonwealth deprived him of assistance of counsel
          during preliminary hearing proceedings under the pretense
          that the County did not receive [Martinez’s] request for
____________________________________________


2 Martinez is referring to the federal Violent Offender Incarceration/Truth-in-
Sentencing (or VOI/TIS – hereinafter “TIS”) incentive grant program enacted
in 1994. The TIS program provides grants to states to be used to increase
the capacity of state correctional systems to confine serious and violent
offenders. See Commonwealth v. Baldwin, 760 A.2d 883, 886 (Pa.
Super. 2000) (explaining TIS and its application in Pennsylvania).


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         appointment of counsel, thereby for [Martinez] to either
         waive said hearing or proceed pro se, did the lower court err
         or abuse [its] discretion in failing to find a miscarriage of
         justice did occur, and or/by failing to freely allow amendment
         of the underlying PCRA Petition to achieve substantial justice
         to assert, as newly[-]discovered facts, records which show
         that Lehigh County officials did fax [Martinez’s] request for
         counsel for Northampton County officials, and did the court
         err or abuse [its] discretion in not permitting [Martinez] to
         raise, as newly[-]discovered facts, the legal implications of
         [Martinez] being subjected to an in-court identification at trial
         based on the victim solely recognizing [Martinez’s] voice
         during pro se representation and questioning of the victim
         during the preliminary hearing?

Brief for Appellant at 3-4 (footnote added, capitalization omitted).     In the

interest of brevity, we will address Martinez’s issues together.

      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error.   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014). The merits of a PCRA petition cannot be addressed unless the

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely

filed. Id.

      Any PCRA petition must be filed within one year of the date the

judgment of sentence becomes final.      42 Pa.C.S.A. § 9545(b)(1).      In the

instant case, Martinez’s PCRA is facially untimely, as he filed it over three

years after September 2012, when his judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth


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under     42    Pa.C.S.A.     §     9545(b)(1)(i)-(iii)   (hereinafter    “timeliness

exception(s)”). Any PCRA petition invoking one of the timeliness exceptions

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

presented.” Id. § 9545(b)(2); see also Albrecht, 994 A.2d at 1094.

        Preliminarily,   Martinez   argues    that   42   Pa.C.S.A.   §   9545(b)   is

unconstitutional, in its entirety, under the Supremacy Clause and the Tenth

Amendment to the United States Constitution. See Brief for Appellant at 12-

18. However, Martinez has waived this issue by not raising it in his PCRA

Petition or Response to the Rule 907 Notice.                See Pa.R.A.P. 302(a)

(providing that “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”); see also Commonwealth v.

Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that “[a]ny claim not

raised in the PCRA petition is waived and not cognizable on appeal.”).

Nevertheless, even if Martinez had raised this assertion before the PCRA

court, he does not explain which of the timeliness exceptions his assertion

satisfies. Accordingly, we would not have jurisdiction to review the merits

this argument, even if it were preserved for our review.

        In his remaining issues, Martinez invokes the newly-discovered facts




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timeliness exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii). 3 Regarding

this timeliness exception, our Court has stated as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned
       those facts earlier by the exercise of due diligence.          Due
       diligence demands that the petitioner take reasonable steps to
       protect his own interests. A petitioner must explain why he
       could not have learned the new fact(s) earlier with the exercise
       of due diligence. This rule is strictly enforced. Additionally, the
       focus of this exception is on the newly[-]discovered facts, not on
       a newly[-]discovered or newly willing source for previously
       known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

and quotation marks omitted). Moreover, petitioners must plead and prove

specific facts demonstrating their claim was raised within the sixty-day time

frame of section 9545(b)(1)(ii). See 42 Pa.C.S.A. § 9545(b)(2); see also

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013).

       From what we can discern from Martinez’s longwinded Argument

section, he essentially raises three main claims under the newly-discovered

facts timeliness exception, each of which invokes a judicial decision:

      1. “In early February of 2017, another prisoner reviewed
         [Martinez’s] legal papers and informed [Martinez] that [the
____________________________________________


3 Though the PCRA court, in its Rule 907 Notice, stated that Martinez
invoked the newly-recognized constitutional right timeliness exception, at 42
Pa.C.S.A. § 9545(b)(1)(iii), Martinez did not raise this exception in the
Statement of Questions Presented section of his brief or in his Argument
section; thus, it is abandoned on appeal. See, e.g., Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (stating that, where the
appellant “fails to expand upon [a] claim in the argument section of his brief
… the claim is waived.”).


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        decisions in] Martinez[, supra] and Ritz[, supra,] have
        invalidated his guilty pleas because he was never informed of
        the requirements of []TIS[,] and that []TIS violates the Tenth
        Amendment[.]” Brief for Appellant at 18 (ellipses omitted).

     2. “Pursuant to Burton[, supra], informed by the same prisoner
        who informed [Martinez] of the issues above, [Martinez] raised
        in the PCRA court the newly[-]discovered fact of the legal
        consequences of the Commonwealth depriving him of counsel
        during the critical phase of the preliminary hearing
        proceeding.” Brief for Appellant at 22.

     3. “[I]t is a newly[-]discovered fact that [Martinez’s] mandatory
        statutory[]   minimum      guideline[]   sentences   are  also
        unconstitutional under the Sixth and Fourteenth Amendments,
        and Alleyne[, supra].” Brief for Appellant at 22.

     It is well settled that “subsequent decisional law does not amount to a

new ‘fact’ under section 9545(b)(1)(ii)[.]” Commonwealth v. Watts, 23

A.3d 980, 987 (Pa. 2011); see also Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013) (rejecting “the notion that judicial decisions can

be considered newly-discovered facts which would invoke the protections

afforded by section 9545(b)(1)(ii)”).

     Moreover, even if three of the decisions upon which Martinez relies

(see Martinez, supra; Ritz, supra; and Alleyne, supra) could be

considered new “facts” under section 9545(b)(1)(ii), he still would not be

entitled to relief, as he did not satisfy the 60-day requirement set forth

in section 9545(b)(2).   See Cintora, 69 A.3d at 763-74.     As the Cintora

Court explained:

      To fulfill the 60-day requirement, appellants[, who had invoked
      the newly-discovered fact timeliness exception based upon a
      new judicial decision,] needed to file their petitions within 60
      days from the date of the court’s decision. [Commonwealth

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       v.] Brandon, [51 A.3d 231, 235 (Pa. Super. 2012)] (finding
       appellant’s claim, alleging recently filed judicial decision as
       newly-discovered fact, failed for, inter alia, not complying with
       section 9545(b)(2), as “the sixty-day period begins to run upon
       the date of the underlying judicial decision[,]” not the date
       appellant became aware of the decision).

Cintora, 69 A.3d at 763-74; see also id. at 764 (pointing out that the

appellants failed to file their PCRA petitions within 60 days of the judicial

decision upon which they relied, and, thus, “the petitions were untimely on

this basis as well.”). In the instant case, Martinez filed his PCRA Petition on

February 23, 2017, and none of the three above-mentioned cases he

invokes (Martinez, supra; Ritz, supra; and Alleyne, supra) were decided

within 60 days of this date.

       Finally, concerning Martinez’s invocation of Burton, supra,4 which

was decided shortly after he filed his PCRA Petition (and which he cited in his

Response to the Rule 907 Notice), it is unavailing to Martinez for two

reasons:

       (1) Judicial decisions cannot constitute a new              “fact”
           under section 9545(b)(1)(ii). See Watts, supra.

       (2) The purported newly-discovered “fact” that Martinez cites
           (i.e., “the Commonwealth depriving him of counsel during
           the critical phase of the preliminary hearing proceeding”
           Brief for Appellant at 22), is not “information of public
           record” as contemplated by Burton. See Burton, 158 A.3d
           at 631 (emphasizing that “[t]o qualify for the exception
____________________________________________


4 The Burton Court held that “the presumption that information which is of
public record cannot be deemed ‘unknown’ for purposes of subsection
9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” Burton, 158
A.3d at 638 (emphasis omitted).


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          under subsection 9545(b)(1)(ii), a petitioner must allege
          and prove that []the facts upon which the claim is
          predicated were unknown to the petitioner….”) (emphasis in
          original; citation omitted).

     Accordingly, because Martinez failed to properly plead or prove any

exception to the PCRA’s one-year time-bar, the PCRA court properly

dismissed the PCRA Petition without a hearing, as the court lacked

jurisdiction to address it.   See Albrecht, supra.        We likewise lack

jurisdiction to address the merits of Martinez’s claims, and thus affirm the

PCRA court’s Order dismissing Martinez’s second PCRA Petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2018




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