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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
JOSE MARTINEZ,                            :          No. 1183 EDA 2017
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, March 20, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0410671-2001


BEFORE: STABILE, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 16, 2018

        Jose Martinez appeals pro se from the March 20, 2017 order

dismissing his untimely serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.       After careful review, we

affirm.1

        This matter stems from appellant’s involvement in the February 20,

2000 shooting death of Angel L. Fuentes in Philadelphia.      The PCRA court

summarized the relevant procedural history of this case as follows:

                    On January 17, 2002, following a jury trial,
              before the Honorable Jane Cutler Greenspan,
              [appellant] was convicted of murder and possession
              of an instrument of crime (“PIC”).[2] On the same
              day, Judge Greenspan imposed a judgment of

1   The Commonwealth has not filed a brief in this matter.

2   18 Pa.C.S.A. §§ 2502(a) and 907, respectively.
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           sentence of life imprisonment without parole for the
           murder conviction, to run concurrently with a term of
           one to two years for the PIC conviction. [Appellant]
           filed a direct appeal and the Pennsylvania Superior
           Court affirmed the trial court’s judgment of sentence
           on May 23, 2003.          [See Commonwealth v.
           Martinez, 829 A.2d 361 (Pa.Super. 2003)
           (unpublished memorandum), appeal denied, 837
           A.2d 1178 (Pa. 2003).] The Pennsylvania Supreme
           Court denied allocatur on November 13, 2003.
           [Id.]

                  [Appellant] filed his first pro se petition for
           collateral relief pursuant to the [PCRA] on May 26,
           2004.      Counsel, [Lee Mandell, Esquire,] was
           appointed and subsequently filed an amended
           petition. On January 14, 2005, the [PCRA] court
           dismissed [appellant’s] PCRA petition. [Appellant]
           filed an appeal and Pennsylvania Superior Court
           affirmed the PCRA court’s decision on December 20,
           2005.     [See Commonwealth v. Martinez, 894
           A.2d     820      (Pa.Super.     2005)   (unpublished
           memorandum), appeal denied, 903 A.2d 537 (Pa.
           2006).]      On July 25, 2006, the Pennsylvania
           Supreme Court denied allocatur. [Id.] [Appellant]
           filed a second PCRA petition on November 17, 2007,
           which was dismissed by the trial court on April 16,
           2008. No appeal followed.

PCRA court opinion, 6/19/17 at 1-2 (footnotes omitted).

     Appellant filed a third pro se PCRA petition on August 13, 2015. On

December 22, 2016, appellant filed another petition, which was styled as a




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writ of habeas corpus.3      On January 31, 2017, the PCRA court provided

appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Pa.R.Crim.P. 907(1). Appellant did not file a response

to the PCRA court’s Rule 907 notice.      Thereafter, on March 20, 2017, the

PCRA court dismissed appellant’s petition as untimely.          Appellant filed a

timely pro se notice of appeal on March 29, 2017. The PCRA court did not

order appellant to file a concise statement of errors complained of on appeal,

in accordance with Pa.R.A.P. 1925(b).       On June 19, 2017, the PCRA court

filed an opinion in support of its March 20, 2017 order.

      Appellant raises the following issues for our review:

            1.    Whether the [PCRA] court erred when it failed
                  to grant relief as untimely?

            2.    Whether       [appellant’s]     alleged   mental
                  incompetence during which the statutory
                  period for filing a [PCRA] petition expired may
                  trigger   the      “after-discovered”   evidence
                  exception [to] the [PCRA] time-bar[]?

Appellant’s brief at 3 (citation and capitalization omitted).

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is




3 We note that the PCRA explicitly states that an action under the PCRA is
the “sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies . . . including habeas corpus.”
42 Pa.C.S.A. § 9542. Plainly stated, “[u]nless the PCRA could not provide
for a potential remedy, the PCRA statute subsumes the writ of
habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super.
2013) (citations omitted).


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supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”          Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

      When the PCRA court denies a petition without an evidentiary hearing,

as is the case here, we “examine each issue raised in the PCRA petition in

light of the record certified before it in order to determine if the PCRA court

erred in its determination that there were no genuine issues of material fact

in controversy and in denying relief without conducting an evidentiary

hearing.”   Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa.Super.

2004).      There    is   no   absolute    right    to    an    evidentiary    hearing.

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa.Super. 2006) (citation

omitted).   “It is within the PCRA court’s discretion to decline to hold a

hearing if the petitioner’s claim is patently frivolous and has no support

either in the record or other evidence.” Commonwealth v. Wah, 42 A.3d

335, 338 (Pa.Super. 2012) (citations omitted).                 Lastly, we note that,

“[a]lthough this Court is willing to liberally construe materials filed by a

pro se   litigant,   pro se    status   confers    no    special   benefit    upon   the



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appellant[.]”    Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.

2005) (citation omitted).

         Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA

court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted).    All PCRA petitions, including second and subsequent

petitions, must be filed within one year of when a defendant’s judgment of

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

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 the time for seeking the review.”        42 Pa.C.S.A.

§ 9545(b)(3). If a PCRA petition is untimely, a court lacks jurisdiction over

the petition.     Commonwealth v. Callahan, 101 A.3d 118, 120-121

(Pa.Super. 2014).

         Here, appellant’s judgment of sentence became final on February 13,

2004, 90 days after our supreme court denied allocator and the time for

filing a petition for writ of certiorari with the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3). Thus, in order to comply with the

filing requirements of the PCRA, appellant was required to file his petition by

February 13, 2005.      See 42 Pa.C.S.A. § 9545(b)(1).    Appellant’s petition,

filed August 13, 2015, is more than 10 years past the deadline and is

patently untimely. As a result, the PCRA court lacked jurisdiction to review



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appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in Section § 9545(b)(1).

      The three narrow exceptions to the one-year time bar are as follows:

            (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.A. § 9545(b)(1)(i-iii); Commonwealth v. Brandon, 51 A.3d

231, 233-234 (Pa.Super. 2012). The appellant bears the burden of pleading

and proving the applicability of one of these exceptions. Commonwealth

v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (citations omitted).             “In

addition, a petition invoking any of the timeliness exceptions must be filed

within 60 days of the date the claim first could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      As best we can discern from his serial petition, the crux of appellant’s

argument is that the PCRA court erred in denying his petition as untimely

because of the newly recognized constitutional rights announced in Alleyne


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v. United States, 570 U.S. 99 (2013), and the Pennsylvania Supreme

Court’s subsequent decision in Commonwealth v. Hopkins, 117 A.3d 247

(Pa. 2015).4        (Pro se PCRA petition, 8/13/15 at 1-5.)    This claim is

meritless.

      Appellant’s reliance on Alleyne and Hopkins is of no avail because

the constitutional rights examined in those cases have not been held to be

retroactive by the Pennsylvania or United States Supreme Court.         On the

contrary, the courts in this Commonwealth have expressly rejected the

notion that Alleyne applies retroactively to cases on collateral review. See

Commonwealth v. Washington, 142 A.3d 810, 814-815 (Pa. 2016)

(holding that the Alleyne decision does not apply retroactively to collateral

attacks      upon    mandatory   minimum   sentences    advanced   in    PCRA

proceedings); Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa.Super.

2015) (stating that, “while this Court has held that Alleyne applies

retroactively on direct appeal, we have declined to construe that decision as

applying retroactively to cases during PCRA review”).    Because Alleyne is

not retroactive to cases pending on collateral review, the derivative cases




4  In Alleyne, the United States Supreme Court held that the Sixth
Amendment requires that “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable doubt.”       Alleyne, 570 U.S. at 103 (citation omitted).
Thereafter, in Hopkins, a panel of this court held that 18 Pa.C.S.A. § 6317,
requiring the imposition of a mandatory minimum sentence if certain drug
crimes occur within 1,000 feet of a school, is unconstitutional under
Alleyne. Hopkins, 117 A.3d at 262.


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applying Alleyne also are not retroactive. See, e.g., Commonwealth v.

Whitehawk, 146 A.3d 266, 271 (Pa.Super. 2016) (holding that, Hopkins

did not announce a new rule for purposes of retroactive application to cases

on collateral review but merely applied Alleyne to a particular mandatory

minimum statute). Therefore, appellant fails to satisfy the newly-recognized

constitutional right exception the PCRA time-bar.           See 42 Pa.C.S.A.

§9545(b)(1)(iii).

      In his pro se brief, appellant all but abandons his Alleyne argument

and cites Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004),5 in support of

his contention that his mental incompetence during the filing of his pro se

petitions   should    qualify   as    a    “newly-discovered    fact”   under

Section 9545(b)(1)(ii).   (See appellant’s brief at 6-9.)   Because appellant

has advanced this issue for the first time on appeal, we find it waived and

decline to address the merits. See Commonwealth v. Rainey, 928 A.2d

215, 226 (Pa. 2007) (concluding that issues not raised in a PCRA petition are

waived and cannot be considered for the first time on appeal); see also

42 Pa.C.S.A. § 9544(b) (stating, “an issue is waived if the petitioner could


5 In Cruz, our Supreme Court held that a petitioner who was suffering from
a brain injury caused by a self-inflicted gunshot wound at the time of his
nolo contendere plea was entitled to the opportunity to attempt to prove
that he was incompetent during the one-year period for seeking relief under
the PCRA. Cruz, 852 A.2d at 296-297. The Cruz court reasoned that the
petitioner’s mental incompetence qualified under the “after-discovered
evidence” exception to the PCRA time-bar under Section 9545(b)(1)(ii),
because it prevented him from discovering factual bases for his collateral
claims. Id.


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

on appeal or in a prior state postconviction proceeding.”); Pa.R.A.P. 302(a)

(stating, “[i]ssues not raised in the lower court are waived and cannot be

raised for the first time on appeal”).

      Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant’s untimely petition without conducting an

evidentiary hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 5/16/18




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