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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
MARTIN ZAVALA ZAVALA,                    :         No. 3122 EDA 2014
                                         :
                         Appellant       :


                 Appeal from the PCRA Order, October 21, 2014,
                in the Court of Common Pleas of Chester County
                Criminal Division at No. CP-15-CR-0000909-2013


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 16, 2015

        Martin Zavala Zavala appeals, pro se, from the order of October 21,

2014, dismissing his second PCRA1 petition. We affirm.

        On July 18, 2013, appellant entered a negotiated guilty plea to two

counts of possession with intent to deliver (“PWID”) cocaine.      Appellant

received the negotiated sentence of 6 to 12 years’ incarceration, including a

5 to 10-year mandatory minimum sentence on Count 2.               (Notes of

testimony, 7/18/13 at 3.) Appellant did not file post-sentence motions or a

direct appeal; however, on April 10, 2014, appellant filed a timely pro se

PCRA petition.     Counsel was appointed, who filed a petition for leave to




* Former Justice specially assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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withdraw and a Turner/Finley “no merit” letter.2       On July 17, 2014, the

PCRA court issued Rule 907 notice and granted counsel permission to

withdraw.3     Appellant did not file any response to Rule 907 notice.     On

August 19, 2014, appellant’s petition was dismissed. Appellant did not file

an appeal from the August 19, 2014 order.

        On August 21, 2014, appellant filed a motion for discovery, followed

by his second PCRA petition on August 29, 2014. On September 19, 2014,

the PCRA court issued Rule 907 notice of its intent to dismiss the petition

without a hearing within 20 days. The PCRA court stated that the petition

was untimely filed and that the claims raised therein were previously

litigated, having been raised in appellant’s first PCRA petition.     (Docket

#22.) Appellant filed a pro se response to Rule 907 notice on October 6,

2014. On October 21, 2014, the PCRA court dismissed appellant’s second

PCRA petition. In addition, also on October 21, 2014, appellant’s discovery

motion was denied.

        On October 30, 2014, appellant filed a timely pro se notice of appeal.

On December 16, 2014, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal within 21 days pursuant to

Pa.R.A.P. 1925(b). (Docket #27.) The docket indicates that appellant was



2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
    Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A.


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served with the order via certified mail. On December 22, 2014, the PCRA

court issued a statement adopting the orders of July 17, 2014 and

September 19, 2014, as its opinion for purposes of this appeal. Appellant

did not file a Rule 1925(b) statement.4

           The standard of review for an order denying
           post-conviction relief is limited to whether the record
           supports the PCRA court’s determination, and
           whether that decision is free of legal error. The
           PCRA court’s findings will not be disturbed unless
           there is no support for the findings in the certified
           record. Furthermore, a petitioner is not entitled to a
           PCRA hearing as a matter of right; the PCRA court
           can decline to hold a hearing if there is no genuine
           issue concerning any material fact and the petitioner
           is not entitled to post-conviction collateral relief, and
           no purpose would be served by any further
           proceedings.

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa.Super. 2008),

appeal denied, 956 A.2d 433 (Pa. 2008), quoting Commonwealth v.

Taylor, 933 A.2d 1035, 1040 (Pa.Super. 2007) (citations omitted).

           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,
           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);

4
   Ordinarily, failure to comply with Rule 1925 results in waiver.
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). However, here,
the PCRA court filed a Rule 1925(a) opinion and the record was forwarded to
this court before expiration of the 21-day period for appellant to file a
Rule 1925(b) statement. Therefore, we cannot find waiver on this basis.


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            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),

appeal denied, 20 A.3d 1210 (Pa. 2011).

      Instantly, appellant was sentenced on July 18, 2013, and his sentence

became final on Monday, August 19, 2013, when the 30-day appeal period

expired.5 Appellant had one year from that date, or August 19, 2014, to file

a timely PCRA petition. As such, appellant’s second petition, filed August 29,

2014, is facially untimely.

      Section 9545 also provides the following three exceptions that allow

for review of an untimely PCRA petition: (1) petitioner’s inability to raise a

claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim;

and   (3)   a   newly    recognized   constitutional   right.   42   Pa.C.S.A.

§ 9545(b)(1)(i)-(iii).   To invoke an exception, the petitioner must plead it

explicitly and satisfy the burden of proof. Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).       In addition, any exception must be raised




5
  The actual 30th day following sentencing, August 17, 2013, fell on a
Saturday. See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from
the computation of time).


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

42 Pa.C.S.A. § 9545(b)(2).

        Appellant claims that the Commonwealth violated Brady6 by failing to

turn over documentary evidence including lab reports, search warrants, and

wiretap authorizations. (Appellant’s brief at 8.) Appellant also claims that

he only became aware of the purported Brady violation on August 29, 2014,

and the Commonwealth prevented him from discovering it earlier.               (Id.)

Appellant attempts to invoke the governmental interference exception to the

one-year time bar.

        First, we observe that appellant entered a negotiated guilty plea.

When he entered the plea, he agreed to waive all non-jurisdictional defects

and defenses, including a claim that the Commonwealth failed to comply

with the rules of discovery.

             “A plea of guilty constitutes a waiver of all
             nonjurisdictional defects and defenses.    When a
             defendant pleads guilty, he waives the right to
             challenge anything but the legality of his sentence
             and the validity of his plea.” Commonwealth v.
             Montgomery, 485 Pa. 110, 401 A.2d 318, 319
             (1979)     (internal   citations   omitted);    see
             Commonwealth v. Irby, 445 Pa. 248, 284 A.2d
             738, 739 (1971) (“[I]t is settled law that all
             procedural and non-jurisdictional defects and
             defenses not previously raised were waived when he
             pleaded to the indictment.”).




6
    Brady v. Maryland, 373 U.S. 83 (1963).


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Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007).            In fact, plea

counsel indicated that they had discussed filing pre-trial motions, and

appellant elected not to do so. (Notes of testimony, 7/18/13 at 3-4.)

     In addition, to obtain relief on a serial PCRA petition, appellant must

demonstrate a miscarriage of justice or actual innocence of the crimes

charged.   Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988).

Appellant’s claim that the Commonwealth failed to comply with mandatory

pre-trial discovery does not implicate the truth-determining process or

establish his innocence.   Furthermore, appellant fails to allege how this

evidence was exculpatory or would have changed the outcome.7 Appellant

now alleges that he was not the individual speaking in the intercepted

telephone conversations; however, appellant agreed to plead guilty in


7
           In order to succeed on a Brady claim, a defendant
           must establish that the evidence withheld was
           favorable to him, i.e., that it was exculpatory or had
           impeachment value; the evidence was suppressed by
           the     prosecution;     and     prejudice    resulted.
           Commonwealth v. Sattazahn, 597 Pa. 648, 952
           A.2d 640, 658 n. 12 (2008). In order to establish
           prejudice, a defendant is obliged to show that “the
           evidence in question was material to guilt or
           punishment, and that there is a reasonable
           probability that the result of the proceeding would
           have been different but for the alleged suppression
           of the evidence.”       Commonwealth v. James
           Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008)
           (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles
           v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131
           L.Ed.2d 490 (1995)).

Commonwealth v. Miller, 987 A.2d 638, 655 (Pa. 2009).


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exchange for a negotiated sentence.         Appellant agreed with the facts as

related by the assistant district attorney. (Notes of testimony, 7/18/13 at

5.) This claim fails.

         Appellant also claims his sentence is illegal. According to appellant, he

should have received a sentence of 3 to 6 years. Appellant asserts that a

challenge to the legality of the sentence is non-waivable. (Appellant’s brief

at 8.)

               [W]hile challenges to the legality of a defendant’s
               sentence cannot be waived, they ordinarily must be
               raised    within   a    timely     PCRA    petition.
               Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d
               214, 223 (1999). This is because the PCRA statute
               is intended as the sole means of collaterally
               challenging a sentence. See 42 Pa.C.S. § 9542;
               Commonwealth       v.   Taylor,    65   A.3d    462
               (Pa.Super.2013); Commonwealth v. Infante, 63
               A.3d 358 (Pa.Super.2013); Commonwealth v.
               Fowler, 930 A.2d 586 (Pa.Super.2007); cf.
               Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697
               (2011) (discussing § 9542 and sole means
               language).

Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa.Super. 2014).

         While it is true that a challenge to the legality of a sentence cannot be

waived, it is still subject to the jurisdictional time restrictions of the PCRA.

Appellant’s petition was untimely filed, and the PCRA court was without

jurisdiction to address it. Appellant failed to plead and prove any exception

to the PCRA’s jurisdictional one-year time bar, and the PCRA court did not

err in dismissing appellant’s petition without a hearing.

         Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2015




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