J-S40014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD CARTAGENA,                          :
                                               :
                       Appellant               :    No. 3226 EDA 2017

               Appeal from the PCRA Order September 5, 2017
      In the Court of Common Pleas of Bucks County Criminal Division at
                       No(s): CP-09-CR-0001555-2015


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                            FILED SEPTEMBER 13, 2018

       Edward Cartagena appeals from the dismissal of his Petition, filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546,

as untimely. We affirm.

       On May 26, 2015, Appellant entered a counseled negotiated guilty plea

to three counts of Possession with Intent to Deliver a Controlled Substance

(“PWID”), and one count each of Criminal Use of a Communication Facility,

Person Not to Possess a Firearm, Dealing in Proceeds of Unlawful Activity, and

Possession of a Controlled Substance.1             That same day, the trial court

accepted the plea agreement and sentenced Appellant to the agreed-upon

term of six to twelve years’ incarceration on one count of PWID, and a
____________________________________________


1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 7512(a); 18 Pa.C.S. § 6105(a)(1);
18 Pa.C.S. § 5111(a)(1); and 35 P.S. § 780-113(a)(16). The charges arose
from his selling or attempting to sell heroin to an undercover police officer on
three occasions in November and December 2014.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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consecutive term of eight years’ probation on the firearms conviction. The

court imposed no further penalty on the remaining convictions.

       On June 5, 2015, Appellant sent a pro se letter to the court asking for

reconsideration of his sentence.          The court sent Appellant’s letter to his

attorney as required by Pa.R.Crim.P. 576(A)(4).           Appellant did not file a

counseled post-sentence motion or a direct appeal. Thus, his Judgment of

Sentence became final on June 25, 2015.2

       On July 22, 2016, Appellant filed a pro se PCRA Petition.        The court

appointed counsel on August 16, 2016. On September 29, 2016, the court

filed a Notice of Intent to Dismiss the Petition without a hearing pursuant to

Pa.R.Crim.P. 907.

       On October 27, 2016, Appellant filed a counseled Response to the Rule

907 Notice, averring that the PCRA court should hold a hearing to establish

that Appellant “was and remained incompetent through the period during

which his right to file a PCRA petition lapsed” and that he “timely filed [his

Petition] within 60 days of becoming sufficiently competent to ascertain the

facts on which his underlying claims are predicated.”         Response to Court’s

Notice of Intent to Dismiss, filed 10/27/16, at ¶11.3

____________________________________________


2 42 Pa.C.S. § 9545(b)(3) (“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.”).
3The record indicates that on December 8, 2016, Appellant filed a second
Response to the Rule 907 Notice.

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      On June 12, 2017, Appellant filed an Amended PCRA Petition. The court

held a hearing, and on June 30, 2017, granted the Petition and reinstated

Appellant’s right to file for post-sentence relief nunc pro tunc. However, the

Commonwealth filed a Motion for Reconsideration, and after holding another

hearing, the trial court dismissed Appellant’s PCRA Petition as untimely on

September 5, 2017.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

  1. Did the lower court err in denying Appellant’s [PCRA] petition
     where Appellant filed a timely post-sentence motion pursuant to
     the Pennsylvania Rules of Criminal Procedure?

 2. Did the lower court err in refusing to treat the document filed by
    Appellant in June of 2015 as a timely filed first [PCRA] Petition?

Appellant’s Brief at 4.

      We review the denial of PCRA relief for an abuse of discretion.

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).            We determine

whether the record supports the PCRA court’s findings and whether its order

is otherwise free of legal error. Id. This Court grants great deference to the

findings of the PCRA court if the record supports them. Commonwealth v.

Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no such deference,

however, to the court’s legal conclusions. Commonwealth v. Ford, 44 A.3d

1190, 1194 (Pa. Super. 2012).



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      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain his PCRA Petition. See

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that

the timeliness of a PCRA Petition is a jurisdictional requisite).

      Under the PCRA, any 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 of Sentence 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). The

PCRA’s timeliness requirements are jurisdictional in nature, and a PCRA court

may not address the merits of the issues raised if the petitioner did not timely

file the PCRA petition. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010).

      As noted above, Appellant’s Judgment of Sentence became final on June

25, 2015. In order to be timely, Appellant needed to submit his PCRA Petition

by June 25, 2016. Id. Appellant filed his Petition on July 22, 2016. The PCRA

court properly concluded that Appellant’s Petition is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b)(1)(i)-(iii). Here, Appellant has failed to invoke any of the

timeliness exceptions.


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      Rather, Appellant argues that there was a “breakdown in the processes

of the trial court” because (1) his pro se letter was a timely-filed post-sentence

motion and the court took no action, other than to send it to his attorney; and

(2) he was never notified that the “post-sentence motion” had been denied

and that the 30-day time limit for filing his direct appeal had begun to run.

Appellant’s Brief at 13-14. He also contends, in the alternative, that the court

should have treated his pro se letter as a first PCRA petition.       Appellant’s

issues garner no relief.

      Pursuant to 210 Pa. Code § 65.24, “where a litigant is represented by

an attorney before the Court and the litigant submits for filing a petition,

motion, brief or other type of pleading in the matter, it shall not be accepted

for filing, but noted on the docket and forwarded to counsel of record.” See

also Pa.R.Crim.P. 576(A)(4) (same). In Commonwealth v. Jette, 23 A.3d

1032 (Pa. 2011), our Supreme Court reiterated its “long-standing policy that

precludes hybrid representation.” Id. at 1036. Although Jette involved a

counseled appellant attempting to proceed pro se on appeal, our Supreme

Court has also declared that “there is no constitutional right to hybrid

representation ... at trial[.]” Commonwealth v. Ellis, 626 A.2d 1137, 1139

(Pa. 1993). A pro se motion filed by a represented defendant is “a nullity,

having no legal effect.” Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.

Super. 2007).    Once the court clerk has sent the pro se pleading to the

defendant’s counsel, the court takes no further action on the pro se pleading.


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Jette, supra at 1044. Most relevant here, a pro se filing has no tolling effect.

Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016) (citing

Pa.R.Crim.P. 576 cmt. (“The requirement that the clerk time stamp and make

docket entries of the filings in these cases only serves to provide a record of

the filing, and does not trigger any deadline nor require any response.”)).

       Accordingly, contrary to Appellant’s characterization, his pro se letter to

the court was a legal nullity, not a post-sentence motion that tolled his appeal

period.   The PCRA court, thus, properly determined that Appellant’s PCRA

Petition filed more than a year after his Judgment of Sentence became final

was facially untimely. Because Appellant did not plead and prove any of the

timeliness exceptions provided in Section 9545(b), the trial court properly

concluded that it lacked jurisdiction to review the merits of his Petition.4

       Appellant alternatively argues that the trial court should have treated

his pro se letter as a first PCRA Petition and, thus, his July 22, 2016, as “merely

an extension of the first petition.” Appellant’s Brief at 16. Appellant fails to

cite any relevant authority to support this contention, and completely ignores

well-settled case law that directly contradicts it.

       “The PCRA provides petitioners with a means of collateral review, but

has no applicability until the judgment of sentence becomes final.”


____________________________________________


4 We further note that where a plea agreement contains a negotiated
sentence, which is accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of that sentence.
Commonwealth v. Coles, 530 A.2d 453, 458 (Pa. Super. 1994).

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Commonwealth v. Kubis, 808 A.2d 196, 198 n.4 (Pa. Super. 2002). See

also Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (“A

PCRA petition may only be filed after an appellant has waived or exhausted

his direct appeal rights”).   Thus, a “premature petition” filed before the

Judgment of Sentence becomes final “does not constitute a first PCRA

petition.” Kubis, supra at 198 n.4.

      Based on the above authority, we decline to characterize Appellant’s

June 5, 2015 pro se letter as a properly filed PCRA Petition. His July 22, 2016

PCRA Petition is, thus, not “merely an extension” of that “petition.”     See

Commonwealth v. Robinson, 837 A.2d 1157, 1163 (Pa. 2003) (rejecting

the “extension theory” as it had previously rejected the “amendment theory”).

Accordingly, Appellant’s second issue merits no relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/18




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