J-S08007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    PHU NGUYEN,

                             Appellant                  No. 1330 EDA 2018


                Appeal from the PCRA Order EnteredApril 5, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0704102-1997


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED APRIL 25, 2019

        Appellant, Phu Nguyen, appeals pro se from the post-conviction court’s

April 5, 2018 order dismissing, as untimely, his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court briefly summarized the facts of Appellant’s underlying

convictions, as follows:
        In August [of] 1995, [Appellant], with four co-defendants,
        conspired to rob a massage parlor. [Appellant], acting as a “look
        out,” aided his co-conspirators in fatally shooting a security guard,
        and robbing several of the parlor’s employees and customers.

PCRA Court Opinion (PCO), 4/5/18, at 2. The court also provided a recitation

of the procedural history of Appellant’s case, stating:
             On May 2, 1997, [Appellant] … was arrested and charged
        with Murder and related offenses. On March 1, 1999, a jury
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*   Former Justice specially assigned to the Superior Court.
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     convicted [Appellant] of Second-Degree Murder, Conspiracy, and
     four counts of Robbery. On the same date, the [trial court]
     sentenced [Appellant] to life imprisonment without the possibility
     of parole for Second-Degree Murder. Further sentencing was
     deferred until April 19, 1999, when [the court] imposed
     concurrent terms of ten to twenty years for Conspiracy, and five
     to ten years for each count of Robbery.1
        1   All other charges were nolle prossed.

         [Appellant] appealed and on September 5, 2002, the Superior
     Court affirmed his judgment of sentence. [Commonwealth v.
     Nguyen, No. 3311 EDA 1999, unpublished memorandum (Pa.
     Super. filed Sept. 5, 2002).] On April 22, 2003, the Supreme
     Court denied [Appellant’s] [Petition] for Allowance of Appeal. On
     July 10, 2015, the [Appellant] filed a pro se [PCRA] … petition, his
     first. On November 28, 2016, this matter was assigned to this
     [c]ourt. On December 15, 2016, PCRA counsel - finding the
     petition untimely - filed a no-merit letter pursuant to
     [Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and]
     Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) [(en
     banc),] and a Motion to Withdraw.

        On March 2, 2017, this [c]ourt dismissed the petition and
     permitted counsel to withdraw. [Appellant] did not file a Notice of
     Appeal to the Superior Court. On July 25, 2017, [Appellant] filed
     an Amended Answer to [the] PCRA Court’s Motion to Dismiss.3
        3 In his Answer, [Appellant] reiterated the claims raised in
        his July 10, 2015 Petition based on Alleyne v. United
        States, [570 U.S. 99] … (2013)[,] while also making new
        claims based on Commonwealth v. Batts, 163 A.3d 410
        ([Pa.] 2017). This was treated as an untimely response to
        the [c]ourt’s [Pa.R.Crim.P.] 907 Notice.

        On February 23, 2018, [Appellant] filed the instant pro se PCRA
     petition, his second. On March 5, 2018, after determining that
     [Appellant] was not entitled to counsel, this [c]ourt found the
     petition meritless and filed a Notice of Intent to Dismiss under
     [Rule] 907. On March 15, 2018, [Appellant] filed a response to
     this [c]ourt’s [Rule] 907 Notice.4
        4 In his [Rule] 907 response, [Appellant] reiterate[d] his
        argument that he received an illegal sentence and that his
        petition was timely, but [he] raise[d] no new issues.


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Id. at 1-2 (one footnote omitted).

        On April 5, 2018, the PCRA court issued an order and accompanying

opinion dismissing Appellant’s petition as being untimely filed. Appellant filed

a timely, pro se notice of appeal on May 2, 2018. The court did not direct him

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Herein, Appellant states two issues for our review:

        A. Whether [Appellant] is entitled to relief from his conviction and
           sentence because the Commonwealth failed to disclose[]
           relevant Brady[1] material in a manner depriving him of his
           rights under the Sixth and Fourteenth Amendments of the U.S.
           Constitution[?]

        B. Whether [Appellant] is entitled to relief from his conviction and
           sentence because the trial court severed Pennsylvania’s
           minimum sentencing statute in a manner depriving him of his
           rights under the Eighth and Fourteenth Amendments of the
           Constitution and the corresponding provisions of the
           Pennsylvania Constitution[?]

Appellant’s Brief at 1 (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

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

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1   Brady v. Maryland, 373 U.S. 83 (1963).

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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). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

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



____________________________________________


2 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).


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       Here, Appellant’s judgment of sentence became final in 2003 and, thus,

his present petition, filed in 2018, is facially untimely. 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).

       Initially, we note that Appellant’s brief has two separate Argument

sections. See Appellant’s Brief at 2, 6. Additionally, he separates his brief

into seven sections and sub-sections, which obviously does not align with the

two issues he set forth in his Statement of the Questions Involved, quoted

supra.      Notwithstanding these briefing defects, we can discern the basic

arguments Appellant raises herein; thus, we will not consider his issues waived

or dismiss his appeal entirely. See Commonwealth v. Hardy, 918 A.2d 766,

771 (Pa. Super. 2007) (“[W]hen defects in a brief impede our ability to

conduct meaningful appellate review, we may dismiss the appeal entirely or

find certain issues to be waived.”) (citations omitted).

       Appellant first contends that he meets the governmental-interference

exception of section 9545(b)(1)(i) based on the Commonwealth’s allegedly

withholding information related to misconduct by multiple Philadelphia Police

Officers.     Not only does Appellant fail to develop this argument in any

meaningful regard,3 but we also deem this claim waived based on his failure

to raise it before the PCRA court. See Pa.R.A.P. 302(a) (“Issues not raised in
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3 For instance, Appellant does not specify whether any officer involved in the
investigation of his case was accused of misconduct.

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the lower court are waived and cannot be raised for the first time on appeal.”).

As the PCRA court points out in a supplemental opinion filed on April 18, 2018,

Appellant did not raise this governmental-interference claim in his initial

petition; instead, he asserted it for the first time in an amended petition that

he mailed on April 5, 2018 - the same date that the court issued its order

dismissing his petition. As the court stresses, “[a] PCRA petitioner may not

raise new claims by merely supplementing a pending PCRA [petition] without

court authorization; failure to obtain leave of the PCRA court waives such

claims.”    PCRA    Court   Supplemental     Opinion,   4/18/18,   at   1   (citing

Commonwealth v. Mason, 130 A.3d 601, 627 (Pa. 2015) (“[I]t is well-

settled that claims raised outside of a court-authorized PCRA petition are

subject to waiver….”)). In light of Appellant’s failure to raise this claim in his

initial petition or in a court-approved amendment thereto, and given his

wholly undeveloped argument in his appellate brief, we deem this issue

waived.

      Appellant next avers that he meets the governmental-interference

exception based on our Supreme Court’s decisions in Commonwealth v.

Batts, 163 A.3d 410 (Pa. 2017), and Commonwealth v. Wolfe, 140 A.3d

651 (Pa. 2016).     However, Appellant’s argument as to how our Supreme

Court’s decisions in these cases amounted to governmental interference is

confusing, at best.      For instance, he contends, “that interference by

government officials prevented him from discovering the unlawful severance

of the statutes in this case….” Appellant’s Brief at 8. Appellant further asserts

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that his “sentence is unconstitutional, because the creation of two classes of

offenders, one eligible for relief under Wolfe and one ineligible, based solely

on the date their convictions became final, violates the Pennsylvania

Constitution’s guarantee of due process, equal protection, and prohibition on

cruel punishments.” Id.

      Appellant’s virtually incoherent arguments do not demonstrate the

applicability of the governmental interference exception. Notwithstanding, we

also note that Batts involved sentencing issues pertaining to individuals

convicted of murder committed when they were under the age of 18, in the

wake of the United States Supreme Court’s decision in Miller v. Alabama,

567 U.S. 460 (2012) (holding that mandatory sentences of life without parole

cannot be constitutionally applied to individuals who were under 18 when they

committed their crimes).      Here, Appellant was 24 years old when he

committed murder and, thus, Batts clearly would not apply to his case.

      Likewise, we would also deem our Supreme Court’s decision in Wolfe

wholly inapplicable to the case sub judice.    In Wolfe, our Supreme Court

struck down the mandatory-minimum sentencing statute set forth in 42

Pa.C.S. § 9718 (Sentences for offenses against infant persons), as it violated

the rule announced in Alleyne v. United States, 570 U.S. 99, 106 (2013)

(holding that “facts that increase mandatory minimum sentences must be

submitted to the jury” and found beyond a reasonable doubt). Appellant was

not sentenced under section 9718; instead, he received a mandatory life-

without-parole sentence under 18 Pa.C.S. 1102(b).       That statute does not

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require fact-finding by the trial court and, therefore, it is not unconstitutional

under Alleyne.

      In sum, Appellant’s waived and/or confusing arguments do not

demonstrate the applicability of any exception to the PCRA’s timeliness

requirement. Consequently, we discern no error in the court’s dismissing his

untimely petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/19




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