J-S64018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ADALBERTO VARGAS

                            Appellant                  No. 386 EDA 2016


                    Appeal from the Order January 13, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000825-2011
                                          CP-15-CR-0000826-2011
                                          CP-15-CR-0003090-2011

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 12, 2016

        Appellant, Adalberto Vargas, appeals pro se from the order dismissing

his “Petition To Correct Illegal Sentence.” We affirm.

        On April 14, 2011, Appellant entered a guilty plea to three counts of

burglary and three counts of conspiracy. At sentencing on June 1, 2011, the

Commonwealth stated:

              Your Honor, I’m handing up a colloquy that was first
           executed on April 14, 2011 before Judge Nagle. There was
           an agreement in place and the defendant’s guilty plea was
           accepted but Judge Nagle rejected the guilty plea or the
           sentence that was called for and asked for the parties to
           continue to negotiate a higher sentence than what was
           called for in the guilty plea agreement.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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            We discussed that sentence.       I believe there’s an
         agreement for a 7 to 14 year term of incarceration when
         you add up the numbers between all the parties. We have
         consulted Judge Nagle and he is in agreement with that,
         and due to his senior status we’re asking Your Honor to
         help us in sentencing the defendant today.

            At the time of the first colloquy, Judge Nagle did
         indicate to the defendant that if he wanted to withdraw his
         guilty plea at any time he could. I would ask that you
         inquire into that today as well as proceed to sentence.

N.T., 6/1/11, at 2.

      The sentencing court then conducted a colloquy on the record, and the

following exchange occurred:

         THE COURT: Okay. As I said, you were before Judge
         Nagle, and Judge Nagle indicated that while he would
         accept the guilty plea, he did not accept the sentence, and
         he told your attorney and the Commonwealth attorney to
         go back and discuss a new sentence. And I’m told they
         have done that and that Judge Nagle is in agreement that
         it is appropriate, so that is the purpose of today’s hearing
         to have me impose the sentence and I’m doing that
         because Judge Nagle is not available. And I understand
         that you are agreeable that I can impose the sentence,
         and I assume you are agreeable to the sentence.

            So I’m going to ask a few questions. First, you have
         the right to say I don’t want to plead guilty anymore. I
         want to take my chances at trial. And if that’s your
         decision today, that’s fine. Do you wish to stand by the
         plea agreement and to continue to plead guilty?

         APPELLANT:     Yes.

         THE COURT: Okay. I take it from the date that you were
         in front of Judge Nagle until today you and your attorney
         had a chance to sit down and talk to discuss what the new
         sentence is going to be, to look at all of the facts of the
         cases that you’re involved in, to look at the sentence you
         might be looking at if there isn’t an agreement and that
         you had an opportunity to discuss all of that with her

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          before deciding to accept the new agreement. Did you do
          all of that?

          APPELLANT:        Yes, sir.

N.T., 6/1/11, at 2-4.

       Thereafter, the court heard from Appellant, who was apologetic and

expressed remorse.        Id. at 5.     The court then sentenced Appellant to an

aggregate 7–14 years in prison.1 Appellant did not file a direct appeal.

       Approximately two years later, on June 25, 2013, Appellant filed an

untimely pro se motion to withdraw his guilty plea and for appointment of

counsel. The trial court properly treated Appellant’s filing as a first petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and

appointed counsel. See Commonwealth v. [Thomas Duane] Taylor, 65

A.3d 462, 465–66 (Pa. Super. 2013) (PCRA is intended to be sole means of

achieving post-conviction relief, and a collateral petition that raises an issue

that the PCRA statute could remedy is to be considered a PCRA petition);

Pa.R.Crim.P. 904(C) (judge shall appoint counsel to represent defendant on

defendant’s first petition for post-conviction collateral relief).



____________________________________________


1
  At Docket No. 3090-2010, Appellant was sentenced to 4-8 years for
burglary and a concurrent 3-6 years for conspiracy; at Docket No. 825-2011,
Appellant was sentenced to 3-6 years for burglary and a concurrent 2-4
years for conspiracy, to be served consecutive to the sentence at Docket No.
3090-2010; at Docket No. 826-2011, Appellant was sentenced to 2-4 years
for burglary and a concurrent 2-4 years for conspiracy, to be served
concurrent to the sentence at Docket No. 825-2011.



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      On October 9, 2013, Appellant’s counsel petitioned for leave to

withdraw, stating that Appellant’s petition was “untimely and there are no

valid issues of merit for a claim of ineffective assistance of counsel.” Petition

to Withdraw as PCRA Counsel, 10/9/13, at 1 (citing Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (“Once counsel for defendant

determines that issues raised under [PCRA] are ‘meritless,’ and court

concurs, counsel will be permitted to withdraw”)).

      On October 15, 2013, the PCRA court filed a Criminal Rule 907 notice

of its intent to dismiss Appellant’s petition on the basis that the petition was

untimely and Appellant had failed to plead an exception to the PCRA’s time

bar. The PCRA court also advised that if Appellant did not respond, it would

enter an order permitting counsel to withdraw and would dismiss the PCRA

petition.   Appellant did not file a response, and on January 23, 2014, the

PCRA court dismissed Appellant’s petition as untimely and granted counsel’s

petition to withdraw. Appellant did not appeal.

      Almost a year later, on December 7, 2015, Appellant filed a pro se

petition to correct illegal sentence, which the court denied on January 13,

2016. Appellant filed a timely notice of appeal on February 2, 2016. In a

March 16, 2016, opinion, the court stated that Appellant’s claim is meritless

because “Mr. Vargas's plea was found to be knowing and voluntary, and the

sentence issued was within the range of the guidelines for the three




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burglaries he was charged with and pled guilty to . . . .” Trial Court Opinion,

3/16/16, at 3.

      Instantly, Appellant presents, verbatim, the following issues for our

review:

          1. THE TRIAL COURT ERRED BY FAILURE TO CORRECT
             ILLEGAL SENTENCE AND/OR CORRECT THE ERROR IN
             THE SENTENCE OF A (4) YEARS TO (8) YEARS EXTRA
             AFTER A NEGOTIATED PLEA AGREEMENT OF (7) YEARS
             TO (14) YEARS, THEREFORE, PETITIONER CHALLENGE
             TO THE VALIDITY OF SENTENCE IN QUESTION AS TO
             THE LEGALITY OF SENTENCE AND IS NONWAIVABLE
             MATTER UNDER SECTION 42 Pa.C.S. § 9541-9546:

          2. WHETHER A MISCARRIAGE OF JUSTICE WOULD OCCUR
             IF THE COMMONWEALTH FAILURE TO ADHERE TO THE
             TERMS OF THE PLEA AGREEMENT OF (7) YEARS TO
             (14) YEARS WHEREAS THE (4) YEARS TO (8) YEARS NO
             LONGER BEING A FACTOR OF THE NEGOTIATED PLEASE
             RAISE THE POSSIBILITY THAT THE PROCEEDING
             RESULTED IN THE EXTRA (4) TO (8) YEARS BEING IN
             ERROR OF THE SENTENCE WERE SO UNFAIR THAT A
             MISCARRIAGE OF JUSTICE WOULD OCCUR IF EXTRA
             SENTENCE IS ALLOWED TO STAND:

          3. WAS COUNSEL INEFFECTIVE FOR NOT OBJECTING TO
             THE COURT’S ERROR FOR FAILURE TO RECOGNIZE THE
             ERROR IN (ERASING, EXPUNGING, OR REMOVING) THE
             (4) TO (8) YEARS SENTENCE AFTER THE NEGOTIATED
             PLEA   AGREEMENT    FOR   ALL  (3)  BURGLARIES
             CONSOLIDATED FOR A SENTENCE OF (7) TO (14)
             YEARS ALL TOGETHER AND THE COURT FAILURE TO
             COMPLY WITH THE PLEA AGREEMENT IN IMPOSING
             THE   EXTRA    TERM   OF   (4) TO   (8)  YEARS
             IMPRISONMENT:

          4. PCRA COUNSEL WAS INEFFECTIVE FOR FAILING TO
             PRESERVE AND ARGUE A CLAIM WITH ARGUABLE
             MERIT SO UNDERMINED THE TRUTH DETERMINING
             PROCESS THAT IN THE CIRCUMSTANCES OF THE
             PARTICULAR CASE, NO RELIABLE ADJUDICATION OF
             GUILT OR INNOCENCE COULD HAVE TAKEN PLACE

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              BECAUSE THE IMPOSITION OF SENTENCE IS GREATER
              THAN THE LAWFUL AGREEMENT:

Appellant’s Brief at ii.

       Preliminarily, we note that the court should have treated Appellant’s

petition to correct illegal sentence as his second petition filed pursuant to the

PCRA. “It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. . . . Issues that are cognizable under the

PCRA must be raised in a timely PCRA petition[.]”             [Thomas Duane]

Taylor, 65 A.3d at 465-466. In Taylor, this Court held that a defendant’s

motion to correct his illegal sentence was properly addressed as a PCRA

petition, stating broadly, “any petition filed after the judgment of sentence

becomes final will be treated as a PCRA petition.”         Id. at 466 (collecting

cases).   A claim challenging the legality of a sentence is cognizable under

the    PCRA,     as     are    ineffectiveness   claims   regarding   sentencing.

Commonwealth v. Guthrie, 749 A.2d 502 (Pa. Super. 2000); see also

Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126 (Pa. 2001).

Accordingly, we review Appellant’s appeal as being from the denial of a PCRA

petition, his second.2




____________________________________________


2
   We further note that PCRA petitioners are entitled to appointed counsel
only on the first petition; this right does not extend to subsequent petitions
like the one before us. See Pa.R.Crim.P. 904(A); Commonwealth v.
Kubis, 808 A.2d 196 (Pa. Super. 2002).



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        When reviewing the denial of PCRA relief, we examine whether the

court’s determination “is supported by the record and free of legal error.”

Commonwealth v. [Paul Gamboa] Taylor, 67 A.3d 1245, 1248 (Pa.

2013). In so doing, we are mindful of the PCRA’s timeliness requirement,

which is mandatory and jurisdictional.           Id.   The court cannot ignore a

petition’s untimeliness and reach the merits of the petition. Id. 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.

Chester, 895 A.2d 520, 522 (Pa. 2006); see also Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

        A petition for relief under the PCRA, including a second or subsequent

petition, must be filed within one year of the date the judgment is final

unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b)(1) of the statute.3         See 42 Pa.C.S. § 9545(b).    A PCRA petition
____________________________________________


3
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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
(Footnote Continued Next Page)


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invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.”            Hernandez, 79 A.3d at

651-652; 42 Pa.C.S. § 9545(b)(2).                 Asserted exceptions to the time

restrictions in the PCRA must be included in the petition, and may not be

raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007).

      Here, Appellant’s judgment of sentence was imposed on June 1, 2011,

and he did not file a direct appeal. His judgment of sentence thus became

final on July 1, 2011, thirty days after the time period for filing a direct

appeal with this Court expired. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a).

To be timely, Appellant had to file a PCRA petition within one year, by July 1,

2012, which he did not do.            Appellant filed this petition on December 7,

2015, more than four years after his judgment of sentence became final.

Therefore, the underlying petition is patently untimely unless Appellant has

satisfied his burden of pleading and proving that one of the enumerated

exceptions in Section 9545(b)(1) applies.

                       _______________________
(Footnote Continued)


      (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).




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      In his petition, Appellant neither acknowledged the PCRA’s time bar,

nor invoked any exception to it.     See Petition to Correct Illegal Sentence,

12/7/15, at 1-3.        Within his brief, Appellant conflates his arguments

regarding his plea, the legality of his sentence, and ineffective assistance of

counsel, all without reference to his delay in filing his latest petition seeking

post-conviction relief.   See Appellant’s Brief at 1-6.    Because Appellant's

petition is untimely on its face and Appellant has failed to plead and prove

any statutory exceptions to the PCRA’s jurisdictional time bar,          we are

compelled to affirm the order denying Appellant post-conviction relief. See

Chester, 895 A.2d at 522; Hernandez, 79 A.3d at 651-52.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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