J-S30036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
JOSE MIGUEL PEREZ,                          :
                                            :
                    Appellant               :          No. 1627 MDA 2016

               Appeal from the PCRA Order September 12, 2016
              in the Court of Common Pleas of Lancaster County,
              Criminal Division, No(s): CP-36-CR-0001497-1991;
                            CP-36-CR-0001533-1991

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 12, 2017

        Jose Miguel Perez (“Perez”), pro se, appeals from the Order denying

his sixth Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        On July 9, 1992, in consolidated cases, a jury found Perez guilty of one

count of delivery of a controlled substance (cocaine), and three counts of

possession with intent to deliver a controlled substance (cocaine).2 See 35

Pa.C.S.A. § 780-113(a)(30).       On June 4, 1993, the trial court sentenced

Perez to an aggregate prison term of 24-80 years.        On May 2, 1994, this

Court affirmed Perez’s judgment of sentence.       Commonwealth v. Perez,



1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
  Perez had been charged with three counts of delivery of a controlled
substance (cocaine) to a police informant. Executing a search warrant,
police seized an additional ½ kilo (over 500 grams) of cocaine, $14,000 in
cash from the kitchen table, and $10,000 in cash from Perez.
J-S30036-17


647 A.2d 266 (Pa. Super. 1994) (unpublished memorandum). Perez did not

seek further review by the Pennsylvania Supreme Court.          Over the years,

Perez filed five petitions for PCRA relief, all of which were unsuccessful. 3

        On July 30, 2015, Perez filed the instant Petition for habeas corpus and

PCRA relief, claiming that he is being unlawfully confined based upon the

absence of the required reason(s) for his sentence on the sentencing

guidelines forms. In March 2016, Perez filed an Amended Petition, asserting

that his confinement is illegal because of alleged defects in the Criminal

Complaint and the arrest warrant affidavits. On September 12, 2016, after

appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court entered an

Order denying Perez’s Petition as untimely filed. Thereafter, Perez filed the

instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of matters complained of on appeal.

        On appeal from the denial of PCRA relief, our standard of review is

whether the findings of the PCRA court are supported by the record and free

of legal error.    Commonwealth v. Breakiron, 781 A.2d 94, 97 n.4 (Pa.

2001).

        We begin by addressing the timeliness of Perez’s Petition, because the

PCRA’s time limitations implicate the court’s jurisdiction, and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015).


3
    Perez also unsuccessfully sought relief in federal court.


                                     -2-
J-S30036-17


      A PCRA petition must be filed within one year of the date the

petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).

“This timeliness requirement is jurisdictional in nature, and a court may not

address the merits of any claim raised unless the petition was timely filed or

the petitioner proves that one of the three exceptions to the timeliness

requirement applies.”    Commonwealth v. Cox, 146 A.3d 221, 227 (Pa.

2016).   The three exceptions to the one-year filing requirement are for

newly-discovered facts, interference by a government official, and a newly-

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition

asserting one of these exceptions must also establish that the exception was

raised within sixty days of the date the claim could have been first

presented. 42 Pa.C.S.A. § 9545(b)(2).

      In this case, Perez’s judgment of sentence became final on June 1,

1994, 30 days after this Court affirmed Perez’s judgment of sentence. See

Pa.R.A.P. 113(a). Therefore, Perez’s current PCRA Petition, filed on July 31,

2015, is facially untimely. Perez asserts that newly-discovered facts render

his Petition timely filed.   Brief for Appellant at 8; see also 42 Pa.C.S.A.

§ 9545(b)(1)(ii).   Specifically, Perez claims that he received the Guideline

Sentence Form on July 1, 2015, and only then discovered that the

sentencing court had failed to state its reasons for Perez’s sentence on the

record. Brief for Appellant at 8. According to Perez, this omission requires




                                  -3-
J-S30036-17


that the sentence be vacated, “regardless of the appropriateness of the

sentence.” Id. at 8-9.

      As our Supreme Court has explained, to establish an exception

pursuant to subsection (b)(1)(ii), a petitioner must establish only that

      (1) the facts upon which the claim was predicated were unknown
      and (2) they could not have been ascertained by the exercise of
      due diligence. Commonwealth v. Bennett, 593 Pa. 382, 930
      A.2d 1264, 1270-72 (Pa. 2007).           We have unequivocally
      explained that “the exception set forth in subsection (b)(1)(ii)
      does not require any merits analysis of the underlying claim.”
      Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263,
      1268 (Pa. 2008).        Rather, the exception only requires a
      petitioner to “prove that the facts were unknown to him and that
      he exercised due diligence in discovering those facts.” Bennett,
      930 A.2d at 1270; see also [] Breakiron, … 781 A.2d [at] 98 []
      (rejecting attempt to invoke section 9545(b)(1)(ii) because
      appellant failed to offer any evidence that he exercised due
      diligence in obtaining facts upon which his claim was based).

Commonwealth v. Cox, 146 A.3d 221, 227-28 (Pa. 2016).

      Here,     Perez   failed   to   establish   how   this   information   was

unascertainable, with the exercise of due diligence, within one year of his

judgment of sentence becoming final.         See Commonwealth v. Burton,

2017 Pa. LEXIS 664, *43 n.23 (Pa. March 28, 2017) (stating that “[a] pro se

incarcerated PCRA petitioner is still required to prove that the facts upon

which his claim of a timeliness exception under subsection 9545(b)(1)(ii) is

based were unknown to him and not ascertainable by the exercise of due

diligence.”).   There is nothing of record establishing that this information

was unavailable to Perez during his direct appeal or throughout his last five




                                      -4-
J-S30036-17


PCRA proceedings. Accordingly, Perez has failed to establish an exception to

the PCRA’s timeliness requirement on this basis. See id.

      Perez additionally claims that the “Criminal [C]omplaint[] and arrest

warrant affidavits filed herein rendered the trial court [] void of jurisdiction

ab initio for ‘want of probable cause,’” as the result of an unidentified

signature on those documents. Brief for Appellant at 10. Perez asserts that

the documents appeared to be issued by District Justice Earle Schmuckle,

“but he did not sign the jurat finding probable cause[,] but an unidentifiable

signature appears.” Id. Perez contends that he is entitled to habeas corpus

relief based upon these defects, and therefore, the PCRA’s time limit does

not apply. Id. at 13.

      Under the Pennsylvania statute,

      habeas corpus is a civil remedy which lies solely for
      commitments under criminal process.          Habeas corpus is an
      extraordinary remedy and may only be invoked when other
      remedies in the ordinary course have been exhausted or are not
      available. If a petitioner is in custody by virtue of a judgment of
      sentence of a court of competent jurisdiction, the writ generally
      will not lie. Pennsylvania law explicitly states that in cases
      where a person has been restrained by virtue of sentence after
      conviction for a criminal offense, the writ of habeas corpus shall
      not be available if a remedy may be had by post[-]conviction
      hearing proceedings authorized by law.             Issues are not
      cognizable under the statutory remedy of habeas corpus if they
      could have been considered and corrected in the regular
      course of appellate review or by post-conviction proceedings
      authorized by law.

Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super. 1999)

(citation omitted) (emphasis added).



                                  -5-
J-S30036-17


      Our Rules of Criminal Procedure provide that

      [a] defendant shall not be discharged nor shall a case be
      dismissed because of a defect in the form or content of a
      complaint, citation, summons, or warrant, or a defect in the
      procedures of these rules, unless the defendant raises the defect
      before the conclusion of the trial in a summary case or before
      the conclusion of the preliminary hearing in a court case, and the
      defect is prejudicial to the rights of the defendant.

Pa.R.Crim.P. 109.

      Perez did not challenge the alleged defects in the Criminal Complaint

and affidavits supporting his arrest warrant before the conclusion of the

preliminary hearing or trial and, therefore, the issue was waived.         See

Commonwealth v. Manni, 302 A.2d 374, 377 (Pa. Super. 1973) (stating

that the failure to object to a defect in the complaint waives the issue). The

defects now alleged by Perez could have been addressed on direct appeal,

and counsel’s failure to object to the alleged defects could have been

considered and corrected through a timely filed PCRA petition.        See 42

Pa.C.S.A. § 9543(a)(2)(ii) (providing eligibility for relief based upon

“ineffective assistance of counsel); see also id. § 9542 (stating that the

PCRA subsumes the remedy of habeas corpus). Accordingly, the remedy of

habeas corpus is not available to Perez. See DiVentura, 734 A.2d at 398.

      Because Perez has established neither an exception to the PCRA’s

timeliness requirement, nor the right to habeas corpus relief, we affirm the

Order of the PCRA court.




                                 -6-
J-S30036-17


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/2017




                          -7-
