J. S02015/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ANTHONY DIODORO,                          :        No. 1932 EDA 2016
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, June 7, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0005422-2010


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MOULTON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MARCH 28, 2017

        Anthony Diodoro appeals pro se from the order of June 7, 2016,

issued by the Court of Common Pleas of Delaware County that dismissed his

third PCRA1 petition without a hearing.

        The factual and procedural history of this matter as recounted by the

trial court is as follows:

                    On January 24, 2011 [appellant] entered a
              negotiated guilty plea to twenty-five consolidated
              counts of possession of child pornography. See
              18 Pa.C.S.A. §6312[(d.1)]. On June 29, 2011 he
              was sentenced to a term of twelve and one half to
              twenty-five years of incarceration. [Appellant] was
              granted leave to file a motion for modification of
              sentence nunc pro tunc. A motion for modification
              of sentence was denied on March 1, 2012. No
              appeal from judgment of sentence was taken.


1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
J. S02015/17


                On July 18, 2012 a counseled PCRA petition
          was filed on [appellant’s] behalf by Jonathan J.
          Sobel, Esquire. The Commonwealth responded to
          the petition and on May 23, 2013 the petition was
          denied. [Appellant] did not pursue his right to an
          appeal.

                On September 11, 2014 [appellant] filed a
          second PCRA petition. The petition alleged that a
          sentence greater than the lawful maximum was
          imposed. See 42 Pa.C.S.A. § 9543(a)(2)(vii). On
          September 30, 2014 the PCRA court issued a
          Pa.R.Crim.P. 907 notice.        [Appellant] filed a
          counseled response and the petition was dismissed
          as untimely on November 12, 2014. [Appellant]
          appealed to the Superior Court and on June 18, 2015
          the November 12th Order was affirmed. [Appellant]
          filed a petition for allowance of appeal to the
          Pennsylvania Supreme Court and on March 17, 2016
          that petition was denied.

                 On April 1, 2016 [appellant] filed his third
          PCRA petition. The petition alleges that he was
          denied the effective assistance of counsel when he
          entered his negotiated guilty plea, that an illegal
          sentence was imposed and that he was convicted
          before a tribunal without jurisdiction.             See
          42 Pa.C.S.A. § 9543(a)(2)(ii), (vii) & (viii). In an
          effort to bring this petition within the PCRA and
          within the jurisdiction of the court [appellant]
          alleged, without any factual support, that he was
          “mentally incompetent during all court proceedings,”
          and therefore, this petition satisfied the timeliness
          exception set forth in Section 9545(b)(1)(ii) of the
          Act.    This allegation is patently frivolous and is
          unsupported by any facts of record. Apart from a
          bald allegation [appellant] has failed to offer any
          evidence that supports his claim. On May 9, 2016 an
          Order giving notice of the court’s intent to dismiss
          the petition without an evidentiary hearing was
          entered. The court informed [appellant] that the
          petition did not satisfy the PCRA’s jurisdictional time
          requirements. [Appellant] was given an opportunity
          to respond and was subsequently granted an


                                   -2-
J. S02015/17


            extension of the period in which to respond. On
            May 31, 2016 [appellant] filed an “Objection” in
            which he repeated his substantive claims but offered
            no additional facts in support of the bald claim that
            an exception that is set forth in 42 Pa.C.S.A. 9545(b)
            brings this third petition within the jurisdiction of the
            court. The PCRA petition that is before the court was
            dismissed on June 7, 2016.

Trial court opinion, 7/12/16 at 1-3.

      Appellant appealed to this court on June 29, 2016. Before this court

appellant contends that the trial court erred when it dismissed his PCRA

petition without a hearing, that his counsel was ineffective for failing to

object to the Commonwealth’s alleged breach of the plea bargain, that the

sentencing court erred when it imposed the sentence on him, and that the

sentencing court violated his right to due process when it imposed the

sentence on him.

            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. Halley, 582 Pa. 164, 870 A.2d
            795, 799 n. 2 (2005). The PCRA court’s findings will
            not be disturbed unless there is no support for the
            findings in the certified record. Commonwealth v.
            Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001).

Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),

appeal denied, 940 A.2d 365 (Pa. 2007).

            Pennsylvania law makes clear no court has
            jurisdiction to hear an untimely PCRA petition.
            Commonwealth v. Robinson, 575 Pa. 500, 508,
            837 A.2d 1157, 1161 (2003). The most recent
            amendments to the PCRA, effective January 16,


                                       -3-
J. S02015/17


          1996, provide a PCRA petition, including a second or
          subsequent petition, shall be filed within one year of
          the date the underlying judgment becomes final.
          42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
          Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003);
          Commonwealth v. Vega, 754 A.2d 714, 717
          (Pa.Super.2000). 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.” 42 Pa.C.S.A. § 9545(b)(3).

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

          The three statutory exceptions to the timeliness
          provisions in the PCRA allow for very limited
          circumstances under which the late filing of a
          petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
          To invoke an exception, a petition must allege and
          prove:

          (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.



                                     -4-
J. S02015/17


            42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
            PCRA petition is not filed within one year of the
            expiration of direct review, or not eligible for one of
            the three limited exceptions, or entitled to one of the
            exceptions, but not filed within 60 days of the date
            that the claim could have been first brought, the trial
            court has no power to address the substantive merits
            of a petitioner’s PCRA claims.” Commonwealth v.
            Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
            (2000); 42 Pa.C.S.A. § 9545(b)(2).

Id. at 1079-1080. “To invoke an exception, the petitioner must plead it and

satisfy the burden of proof.”    Commonwealth v. Geer, 936 A.2d 1075,

1077 (Pa.Super. 2007), appeal denied, 948 A.2d 803 (Pa. 2008), citing

Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

            “The PCRA’s time restrictions are jurisdictional in
            nature.    Thus, [i]f a PCRA petition is untimely,
            neither this Court nor the trial court has jurisdiction
            over the petition. Without jurisdiction, we simply do
            not have the legal authority to address the
            substantive claims.” Commonwealth v. Albrecht,
            606 Pa. 64, 994 A.2d 1091, 1093 (2010) (quoting
            Commonwealth v. Chester, 586 Pa. 468, 895 A.2d
            520, 522 (2006)). Statutory time limitations “are
            mandatory and interpreted literally; thus, a court has
            no authority to extend filing periods except as the
            statute permits.” [Commonwealth v.] Fahy, 737
            A.2d [214] at 222 [Pa. 1999].

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).

      Here, appellant’s motion for modification of his sentence was denied

on March 1, 2012.     Appellant had 30 days to file a direct appeal or until

March 31, 2012. Appellant did not file a direct appeal. In order to timely file

a PCRA petition, appellant had to file this petition within one year of

March 31, 2012. The current petition was not filed until April 1, 2016, which


                                     -5-
J. S02015/17


was clearly untimely. In order for the PCRA court to properly consider the

current petition, appellant must establish that the petition meets one of the

three exceptions to the one-year requirement.

      In his petition, appellant alleged that he was mentally incompetent

during all court proceedings so that he satisfied the unknown facts exception

contained in Section 9545(b)(1)(ii) of the Act, 42 Pa.C.S.A. § 9545(b)(1)(ii).

However, a review of appellant’s brief reveals that he does not raise the

issue of his mental competence, so that issue is waived. See In re K.K.,

957 A.2d 298, 303 (Pa.Super. 2008) (an appellant abandons an issue by not

raising it in the argument section of his brief).

      Appellant also claims that the unknown facts exception excuses his

untimeliness because the Commonwealth breached its plea bargain with him

because he pled guilty to a sentence that exceeded the statutory maximum

without authorization.    As a result, appellant argues that his trial counsel

was ineffective because he did not object to the imposition of the sentence.

However, appellant does not specify why he could not have made such a

claim in his first PCRA petition as he fails to establish why these “facts” were

unknown to appellant and could not have been ascertained by an exercise of

due diligence. Also, these claims could have been brought in appellant’s first

PCRA petition and are waived on that basis. 42 Pa.C.S.A. § 9544(b) (“For

purposes of this subchapter, an issue is waived if the petitioner could have




                                      -6-
J. S02015/17


raised it but failed to do so before trial, at trial, during unitary review, on

appeal or in a prior state postconviction proceeding.”).

      Appellant next asserts that his untimely petition meets the recognition

of a new constitutional right exception contained in Section 9545(b)(1)(iii).

It is not clear exactly to which constitutional right he is referring. Although

he mentions Alleyne v. United States,               U.S.     , 133 S.Ct. 2151

(2013), he concedes that he was not subjected to mandatory minimum

sentencing.

      To the extent appellant is arguing that his sentence is illegal, this claim

does not allow him to skirt the timeliness requirement. “[E]ven claims that

a sentence was illegal, an issue deemed incapable of being waived, are not

beyond the jurisdictional time restrictions.”   Commonwealth v. Grafton,

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa.

1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).

Therefore, appellant’s illegal sentencing claim does not operate as an

independent exception to the PCRA’s jurisdictional time-bar.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017



                                      -7-
