J-S62024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

 EDUARDO CINTRON

                             Appellant                 No. 429 MDA 2017


                  Appeal from the PCRA Order February 7, 2017
                  In the Court of Common Pleas of Berks County
               Criminal Division at No(s): CP-06-CR-0003433-1997
                                           CP-06-CR-0003434-1997
                                           CP-06-CR-0003435-1997
                                           CP-06-CR-0003437-1997
                                           CP-06-CR-0003438-1997
                                           CP-06-CR-0003439-1997
                                           CP-06-CR-0003638-1997
                                           CP-06-CR-0004433-1997
                                           CP-06-CR-0004434-1997
                                           CP-06-CR-0004436-1997



BEFORE: STABILE, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                        FILED DECEMBER 12, 2017

       Eduardo Cintron appeals from the February 7, 2017 order entered in the

Berks County Court of Common Pleas dismissing without a hearing his third

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-46. We affirm.




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       *   Retired Senior Judge assigned to the Superior Court.
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       On August 27, 1998, a jury convicted Cintron of a number of criminal

offenses stemming from 10 criminal dockets. That same day, the trial court

sentenced Cintron to an aggregate term of 70 to 140 years’ incarceration. On

January 22, 1999, Cintron filed a post-sentence motion to modify sentence

and a motion to file an appeal nunc pro tunc.1 Cintron did not file an appeal.

       On August 4, 1999, Cintron filed a PCRA petition.        The PCRA court

appointed counsel, who, on December 15, 1999, filed a Turner/Finley2 “no

merit” letter and motion to withdraw as counsel. On March 1, 2000, the PCRA

court filed a notice of intent to dismiss the petition without a hearing under

Pennsylvania Rule of Criminal Procedure 15073 and granted counsel’s petition

to withdraw. On September 8, 2000, the PCRA court dismissed the petition.

Cintron appealed to this Court, and on October 17, 2001, we affirmed the

dismissal.

       On February 8, 2012, Cintron filed a second PCRA petition. On March

1, 2012, the PCRA court issued a notice of intent to dismiss the petition

without a hearing under Pennsylvania Rule of Criminal Procedure 907. On

March 22, 2012, the PCRA court dismissed the petition. On April 9, 2012,



____________________________________________


       1   The record does not disclose the disposition of these motions.

      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
       2

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

       3On March 1, 2000, Rule 1507 was renumbered Rule 907 and amended,
effective April 1, 2001.

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Cintron timely appealed to this Court.        On August 17, 2012, this Court

dismissed the appeal because Cintron failed to file a brief.

      On August 15, 2016, Cintron filed the instant PCRA petition, his third.

Cintron supplemented this petition on September 26, 2016. On December 15,

2016, the PCRA court ordered the Commonwealth to respond to the petition.

On January 9, 2017, the Commonwealth filed its response. On January 17,

2017, the PCRA court issued a notice of intent to dismiss the petition without

a hearing under Rule 907. On February 6, 2017, Cintron filed a response to

the PCRA court’s notice. On February 7, 2017, the PCRA court dismissed the

petition. On March 6, 2017, Cintron timely appealed to this Court.

      Cintron raises three issues on appeal:

            1. Was [Cintron] denied a constitutional right of appeal
               where counsel failed to honor [Cintron’s] request for
               an appeal, and did counsel have an obligation?

            2. Did the trial court fail to give an on the record
               determination concerning counsel[’]s abandonment of
               [Cintron] for the purpose of his appeal, and did the
               court fail to provide a hearing to make such
               determinations?

            3. Did the trial court abuse [its] discretion by failing to
               properly consider [Cintron’s] nunc-pro-tunc request
               for relief, and where [Cintron] informed the judge by
               lengthy letter prior to, the court having failed to make
               this determination?

Cintron’s Br. at 3 (full capitalization omitted).

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

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Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). We will not disturb the PCRA

court’s factual findings “unless there is no support for [those] findings in the

certified record.” Commonwealth v. Melendez-Negron, 123 A.3d 1087,

1090 (Pa.Super. 2015).

       We must first address whether Cintron timely filed the PCRA petition.

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125

A.3d 1197 (Pa. 2015). A PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final.”

42 Pa.C.S. § 9545(b)(1).         A judgment is 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. § 9545(b)(3).

       Cintron’s judgment of sentence became final on September 28, 1998,

when his time to seek review in this Court expired.4 He had one year from

that date, or until September 28, 1999, to file a timely PCRA petition.

Therefore, his current petition, filed on August 15, 2016, is facially untimely.

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:


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       Cintron had 30 days from his judgment of sentence to file a notice of
       4

appeal with this Court. See Pa.R.A.P. 903(a). Because the thirtieth day,
September 27, 1998, was a Sunday, Cintron had until the next business day,
September 28, 1998, to file his notice of appeal. See 1 Pa.C.S. § 1908.

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         (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); see Brown, 111 A.3d at 175-76. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

      In his petition and his September 26, 2016 supplement, Cintron claimed

that he met the newly-discovered-facts exception under section 9545(b)(1)(ii)

or, alternatively, that a new constitutional right applied retroactively to his

case under section 9545(b)(1)(iii).

      Cintron’s petition does not meet the newly-discovered-facts exception

under section 9545(b)(1)(ii). In his supplement, he merely “aver[red] . . .

after discovered fact[] or evidence,” without disclosing those newly-

discovered facts or evidence.     Supp. PCRA Pet., 9/26/16, at 4.          Because

Cintron neither pled nor proved that he met this exception, his petition

remains untimely. See Commonwealth v. Burton, 158 A.3d 618, 629 (Pa.

2017) (“Exception [(b)(1)(ii)] requires the petitioner to allege and prove that


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there were ‘facts’ that were ‘unknown to him’ and that he could not have

ascertained those facts by the exercise of ‘due diligence.’”) (emphasis in

original) (quoting Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa.

2008)).

       Similarly, Cintron’s petition does not meet the new-constitutional-right

exception under section 9545(b)(1)(iii). Cintron asserts that in two recent

cases, the United States Supreme Court recognized new constitutional rights

that apply retroactively on collateral review in Alleyne v. United States, 133

S.Ct. 2151 (2013), and Foster v. Chatman, 136 S.Ct. 1737 (2016).5

       With respect to his illegal sentencing claim under Alleyne, our Supreme

Court has held “that Alleyne does not apply retroactively to cases pending on

collateral review.” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa.

2016). Additionally, Foster did not recognize a new constitutional right and,

even if it had, neither the United States Supreme Court nor the Pennsylvania

Supreme Court has concluded that Foster’s holding applies retroactively on



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       5In Alleyne, the United States Supreme Court held that, under the
Sixth Amendment, “any fact that increases [a] mandatory minimum
[sentence] is an ‘element’ that must be submitted to the jury.” Alleyne, 133
S.Ct. at 2155. In Foster, the United States Supreme Court reversed the
judgment of the Georgia Supreme Court, concluding that (1) the “[Georgia]
habeas [corpus] court’s application of res judicata to Foster’s Batson [v.
Kentucky, 476 U.S. 79 (1986)] claim . . . pose[d] no impediment to [the
United States Supreme Court’s] review of Foster’s Batson claim,” 136 S.Ct.
at 1746-47, and (2) the State’s peremptory strike of two black prospective
jurors based on race violated Foster’s constitutional rights under Batson, id.
at 1754.

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collateral review. Because Cintron failed to prove that a new constitutional

right applies retroactively on collateral review, his petition remains untimely.

      Cintron’s petition and supplement failed to prove any of the exceptions

to the PCRA time bar. Accordingly, because Cintron’s petition was untimely,

the PCRA court correctly dismissed it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017




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