J-S94006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AMILCAR RIVAS-RIVERA

                            Appellant                  No. 518 MDA 2016


                  Appeal from the PCRA Order March 11, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0000099-2012,
              CP-36-CR-0000100-2012, CP-36-CR-0000101-2012,
              CP-36-CR-0000102-2012, CP-36-CR-0000108-2012,
                            CP-36-CR-0000120-2012


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 21, 2017

        Amilcar Rivas-Rivera appeals, pro se, from the order entered in the

Court of Common Pleas of Lancaster County, denying his second petition

filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546

(“PCRA”). After our review, we affirm.

        Rivas-Rivera entered an open guilty plea to fifty-four (54) felony

counts arising out of a string of burglaries in Lancaster County that occurred

throughout September and October of 2011.          On February 12, 2013, the

court sentenced Rivas-Rivera to an aggregate term of fifteen to thirty years’


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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imprisonment.1 Rivas-Rivera filed a motion to modify sentence, which was

denied. No direct appeal was filed.

       Rivas-Rivera filed a timely first PCRA petition on February 6, 2014.2

The court appointed counsel, who filed an amended petition. In his petition,

Rivas-Rivera claimed his guilty plea was involuntarily entered because trial

counsel was ineffective. He claims counsel misled him with respect to the

terms of the plea agreement, telling him that the Commonwealth would

withdraw four burglary and attempt charges to which he claimed innocence,

as long as he pled guilty to the remaining charges, and that the charges

would be dropped after the guilty plea was signed. The PCRA court held a

hearing and denied relief on October 31, 2014.        On appeal, this Court

affirmed, Commonwealth v. Rivas-Rivera, 1926 MDA 2014 (unpublished

memorandum, filed June 19, 2015), and the Pennsylvania Supreme Court

denied allowance of appeal.
____________________________________________


1
  At his guilty plea hearing/sentencing, Rivas-Rivera acknowledged that his
maximum prison sentence was 887 years and his maximum fine was
$1,340,000.00. N.T. Guilty Plea/Sentencing, 2/12/13, at 10-11. The court
stated, however, that his exposure under the plea agreement was 440 years
plus fines of $625,000.00. Id. at 11.
2
  Under the PCRA, “a judgment becomes 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). Here, Rivas-Rivera was
sentenced on February 12, 2013, and his post-sentence motions were
denied on March 11, 2013. His time for direct appeal expired on April 10,
2013; thus, he had had until April 10, 2014, to file any and all petitions for
collateral relief.



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       Rivas-Rivera filed this, his second petition, on February 1, 2016. The

court issued a notice of dismissal without a hearing pursuant to Pa.R.Crim.P.

907, and Rivas-Rivera filed a timely response.       On March 11, 2016, the

PCRA court dismissed Rivas-Rivera’s petition, concluding it was untimely.3

This appeal followed.        The court ordered Rivas-Rivera to file a Concise

Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b),

and Rivas-Rivera timely filed his statement on March 31, 2016.

       Rivas-Rivera raises the following issues on appeal:

       1. Whether the trial court erred in dismissing Rivas-Rivera’s
          PCRA petition without a hearing, where his guilty plea counsel
          was ineffective for unlawfully inducing her client to plead
          guilty on an illusory agreement that certain charges would be
          withdrawn if he signed the guilty plea; Rivas-Rivera signed
          the guilty plea but the charges were not withdrawn.

       2. Whether guilty plea counsel was ineffective for failing to keep
          her client fully informed of all options throughout the
          proceeding, in compliance with Commonwealth v. Mickens,
          597 A.2d 1196 (Pa. Super. 1991) (lawyer has the duty to
          “keep the accused fully informed” of all options throughout
          the proceedings), quoting Commonwealth v. Saxton, 516
          Pa. 196, 200, 532 A.2d 352, 354 (1987) (quoting) American
          Bar Association, Standards, Standards for Criminal Justice
          (A.B.A. Standards 4-3.1(a), 4-3.8, 4-6.2(a)) where trial
          counsel failed to inform Rivas-Rivera that he could have pled

____________________________________________


3
  As explained in note 2, supra, Rivas-Rivera had until April 10, 2014, to file
any and all petitions for collateral relief. This second petition, therefore, is
patently untimely. The PCRA court also determined that Rivas-Rivera’s first
two issues were previously litigated. An issue has been previously litigated if
“the highest appellate court in which the petitioner could have had review as
a matter of right has ruled on the merits of the issue.” See 42 Pa.C.S. §
9543(a)(3).



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           guilty to some charges and gone to trial on the charges that
           he did not want to plead guilty to.

      3. Whether the court erred by not considering the newspaper
         article that Rivas-Rivera found as newly-discovered evidence
         pursuant to 42 Pa.C.S. § 9545(b)(2)(ii) and Commonwealth
         v. Castro, 93 A.2d 818, 822 (Pa. 2014).

Appellant’s Brief, at 4.

      “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.”    Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016);

Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. Super. 1999). A PCRA

petition must be filed within one year of the date the judgment of sentence

becomes final.     See 42 Pa.C.S. § 9545(b)(1).       There are three statutory

exceptions to the PCRA’s timeliness provisions that allow for limited

circumstances under which an otherwise untimely PCRA petition may be

reviewed. To invoke an exception, a petition must allege and the petitioner

must prove:

           (i) the failure to raise a claim previously was the result of
           interference by government officials with the presentation
           of the claim in violation of the Constitution or the law of
           this Commonwealth or the Constitution or law 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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Here Rivas-Rivera’s petition was filed on February 1, 2016, almost two

years after the filing deadline of April 10, 2014. See note 2, supra. Rivas-

Rivera alleges, however, that his petition is timely under the newly-

discovered facts exception to the PCRA time requirement. See 42 Pa.C.S. §

9545(b)(ii).   He claims a newspaper article he discovered on August 13,

2015, constitutes an after-discovered fact under section 9454(b)(ii).     See

Response to Pa.R.Crim.P. 907 Notice of Intent to Dismiss, 3/10/16.

However, Riva-Riveras failed to file his petition within 60 days of discovering

the newspaper article, or by October 13, 2015, as required by section

9545(b)(2). See Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783

(2000) (“[W]hen a PCRA petition is not filed within one year of the expiration

of direct review, or not eligible for one of the three limited exceptions, or

entitled to one of the exceptions, but not filed within 60 days of the date

that the claim could have been first brought, the trial court has no power to

address the substantive merits of a petitioner's PCRA claims.”). We,

therefore, affirm the trial court’s order dismissing Rivas-Rivera’s second

PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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