J-S69044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ABIDIK QUESADA GONZALEZ                    :
                                               :
                       Appellant               :   No. 258 MDA 2018

                 Appeal from the PCRA Order January 12, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005872-2010,
              CP-67-CR-0006451-2010, CP-67-CR-0006452-2009

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                      FILED: NOVEMBER 9, 2018

       Abidik Quesada Gonzalez (Appellant) appeals from the order denying

his petition for writ of habeas corpus. We affirm.

       On May 9, 2011, Appellant pled guilty at docket numbers CP-67-CR-

6452-2009 (6452-2009) and CP-67-CR-6451-2010 (6451-2010) to one count

of fleeing or attempting to elude police1 and four counts of possession with

the intent to deliver a controlled substance.2 The same day, pursuant to the

plea agreement, the trial court sentenced Appellant to an aggregate three-

and-a-half to seven years of incarceration.         Appellant did not file a direct

appeal from his judgment of sentence at docket numbers 6452-2009 and


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1   75 Pa.C.S.A. § 3733(a).

2   35 P.S. § 780-113(a)(30).
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6451-2010. Therefore, Appellant’s judgment of sentence at these dockets

became final 30 days later on June 9, 2011, when the 30-day period for filing

an appeal with this Court expired. See Pa.R.A.P. 903(a).

       On November 3, 2011, at docket number CP-67-CR-5872-2010 (5872-

2010), a jury found Appellant guilty of aggravated assault.3 On January 27,

2012, the trial court sentenced Appellant at docket number 5872-2010 to 7½

to 15 years of incarceration. On         February   24,   2012,   Appellant   timely

appealed his judgment of sentence at docket number 5872-2010 to this Court.

On November 8, 2012, this Court affirmed Appellant’s judgment of sentence.

See Commonwealth v. Gonzalez, 394 MDA 2012 (Pa. Super. Nov. 8, 2012)

(unpublished memorandum).             Appellant did not petition for allowance of

appeal to the Pennsylvania Supreme Court. Therefore, Appellant’s judgment

of sentence at docket number 5872-2010 became final 30 days later on

December 10, 2012. See Pa.R.A.P. 1113(a).4

       In the years since Appellant’s appeal at docket number 5872-2010,

Appellant has filed at all three docket numbers several petitions pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, none of

which have afforded him any relief. On February 27, 2017, at all three docket



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3   18 Pa.C.S.A. § 2702(a)(1).

4 December 8, 2012 was a Saturday. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).

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numbers, Appellant filed the underlying pro se petition for writ of habeas

corpus in which he raised numerous claims, including, inter alia, prosecutorial

misconduct, the violation of his constitutional right to counsel, ineffective

assistance of counsel, evidentiary claims, and witness tampering. See Petition

for Writ of Habeas Corpus, 2/27/17, ¶ 13. On June 30, 2017, the trial court

entered a notice of its intent to dismiss Appellant’s Habeas petition pursuant

to Rule 907 of the Pennsylvania Rules of Criminal Procedure.        The court

concluded that Appellant’s Habeas petition was actually an untimely PCRA

petition over which it had no jurisdiction. See Trial Court Order, 6/30/17, at

1-4. On January 12, 2018, the trial court dismissed the petition. On February

6, 2018, Appellant filed a counseled notice of appeal.5

       On appeal, Appellant raises the following issue:

       I.     WHETHER THE TRIAL COURT ERRED IN DISMISSING
              APPELLANT’S PETITION FOR WRIT OF HABEAS CORPUS AS
              UNTIMELY[,] TREATING THE PETITION AS A PCRA
              PETITION?

Appellant’s Brief at 4.

       It is well settled “that the PCRA provides the sole means for obtaining

collateral review, and that any petition filed after the judgment of sentence

becomes final will be treated as a PCRA petition.”        Commonwealth v.

Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). As Section 9542 of the



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5 Both the trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.

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PCRA itself explicitly states, “[t]he action established in this subchapter shall

be the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose that exist when

this subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S.A. § 9542.

       Appellant asserts that the trial court erred in treating his petition for writ

of habeas corpus as a PCRA petition because his petition raised an allegation

of prosecutorial misconduct, and such claim does not fit within the parameters

of Section 9543(a)(2)6 that would make him eligible for relief under the PCRA.

Appellant is correct that his prosecutorial misconduct claim is not cognizable

under Section 9543 of the PCRA. See Commonwealth v. Sepulveda, 55

A.3d 1108, 1138 (Pa. 2012) (“We agree with the PCRA court that appellant’s

claim is not cognizable to the extent it sounds in a claim of prosecutorial

misconduct.”).




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6  The PCRA requires a petitioner to plead and prove that his conviction or
sentence resulted from one of the following: a constitutional violation that so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place, 42 Pa.C.S.A. § 9543(a)(2)(i);
ineffective assistance of counsel, 42 Pa.C.S.A. § 9543(a)(2)(ii); an unlawfully
induced guilty plea, 42 Pa.C.S.A. § 9543(a)(2)(iii); the improper obstruction
by governmental officials of the petitioner’s right of appeal, 42 Pa.C.S.A. §
9543(a)(2)(iv); the unavailability at the time of trial of exculpatory evidence,
42 Pa.C.S.A. § 9543(a)(2)(vi); an illegal sentence, 42 Pa.C.S.A. §
9543(a)(2)(vii); or a proceeding in a tribunal that lacked Jurisdiction, 42
Pa.C.S.A. § 9543(a)(2)(viii).

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      This   does   not   mean,   however,   that   Appellant’s   petition   was

misconstrued as a PCRA petition. First, at least one of the claims Appellant

raised in his habeas petition is cognizable under the PCRA (ineffective

assistance of counsel).    See 42 Pa.C.S.A. § 9543(a)(2)(ii).        Moreover,

Appellant’s prosecutorial misconduct claim was waived because he failed to

raise it before the trial court. Therefore, to the extent Appellant could raise

the claim of prosecutorial misconduct, he had to present it in the context of

counsel’s ineffectiveness. Our Supreme Court has explained:

      If the defendant thinks the prosecutor has done something
      objectionable, he may object, the trial court rules, and the ruling
      – not the underlying conduct – is what is reviewed on appeal.
      Where, as here, no objection was raised, there is no claim of
      “prosecutorial misconduct” as such available. There is, instead, a
      claim of ineffectiveness for failing to object, so as to permit the
      trial court to rule.

Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa. 2008); see also 42

Pa.C.S.A. § 9544(b) (“For purposes of this subchapter, an issue is waived if

the petitioner could have raised it but failed to do so before trial, at trial,

during unitary review, on appeal or in a prior state postconviction

proceeding.”).   A defendant cannot circumvent waiver or the PCRA’s time

limitations by filing a habeas petition.     Our Supreme Court has stated,

“[s]imply because a petition is not considered because of previous litigation

or waiver does not alter the PCRA’s coverage of such claims or make habeas

corpus an alternative basis for relief.” Commonwealth v. Fahy, 737 A.2d

214, 224 (Pa. 1999).        Accordingly, we conclude that the trial court


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appropriately treated Appellant’s habeas petition as a PCRA petition.          We

therefore consider the timeliness of the petition.

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions apply:

      (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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).       If a petition is untimely, and the

petitioner has not pled and proven any exception, “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.”




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Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       As set forth above, Appellant’s judgments of sentence at docket

numbers 6452-2009 and 6451-2010 became final on June 9, 2011, and at

docket number 5872-2010 on December 10, 2012. Appellant had one year –

until June 11, 20127 at docket numbers 6452-2009 and 6451-2010, and

December 10, 2013 at docket number 5872-2010 – to file a timely PCRA

petition. Thus, the underlying petition, which Appellant filed on February 27,

2017, is facially untimely, and we lack jurisdiction unless Appellant pled and

proved one of the three timeliness exceptions of section 9545(b)(1). See id.

Our review reveals that Appellant did not attempt to plead or prove any of the

timeliness exceptions of section 9545(b)(1) in his PCRA petition. See Petition

for Writ of Habeas Corpus, 2/27/17.            Accordingly, we lack jurisdiction to

address the merits of the appeal. See Derrickson, 923 A.2d at 468.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2018

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7   See supra, n.4.

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