J-S08030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MANUEL COLLAZO,                          :
                                          :
                    Appellant.            :   No. 2437 EDA 2018


           Appeal from the PCRA Order Entered, August 1, 2018,
           in the Court of Common Pleas of Northampton County,
            Criminal Division at No(s): CP-48-CR-0003539-2014.


BEFORE:    BENDER, P.J.E., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                             FILED MAY 10, 2019

      Manuel Collazo appeals from the order denying his first petition filed

pursuant to the Post Conviction Relief Act. We affirm.

      The pertinent facts and procedural history are as follows:         As his

unarmed victim was fleeing, Collazo shot the victim in the back. On March

27, 2015, Collazo tendered a negotiated guilty plea to aggravated assault and

unlawful possession of a firearm, and the Commonwealth withdrew other

charges, including a charge of attempted murder. Following written and oral

colloquies, the trial court sentenced Collazo, in accordance with his negotiated

plea, to an aggregate term of 8½ to 20 years of imprisonment.

      Although Collazo failed to file a timely post-sentence motion, the trial

court granted his subsequent request to file the motion nunc pro tunc. In his

petition, Collazo claimed that the prior record score used to negotiate his
____________________________________
* Former Justice specially assigned to the Superior Court.
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sentence was incorrect. In the alternative, Collazo sought to withdraw his

guilty plea. The trial court held a hearing on April 24, 2015, at which time

Collazo informed the court that he did not wish to withdraw his plea, but

requested a continuance regarding his post-sentence motion. Ultimately, the

trial court denied Collazo’s post-sentence motion on December 7, 2015.

      Collazo filed a timely appeal to this Court. In this appeal, Collazo raised

four issues, including a challenge to the discretionary aspects of his sentence

and the voluntariness of his guilty plea. Finding no merit to any claim, we

affirmed his judgment of sentence on January 19, 2017. Commonwealth v.

Collazo, 160 A.3d 258 (Pa. Super. 2017) (unpublished memorandum).

Collazo did not seek further review.

      Collazo filed a pro se PCRA petition on February 28, 2018. According to

the PCRA court:

            [The PCRA court] appointed counsel, conducted an issue
         framing conference and then brought [Collazo] in from SCI
         Houtzdale to conduct his PCRA hearing. The hearing was
         held on July 16, 2018, in which we took testimony from
         [Collazo]. Although guilty plea counsel was present, he was
         not called as a witness. Initially, the [Commonwealth]
         argued that the [PCRA petition] was filed beyond the
         jurisdictional [time frame] and should be dismissed.
         Arguably the [petition] may have been a few days late, still
         we accepted jurisdiction of this first PCRA[.]

Order of Court, 8/1/18, at 4. After hearing Collazo’s testimony, the PCRA

court granted PCRA counsel’s request to file a brief.     By order entered on

August 1, 2018, the PCRA court denied Collazo’s PCRA petition as meritless.



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This appeal followed. Both Collazo and the PCRA court have complied with

Pa.R.A.P. 1925.

      Collazo raises the following issue on appeal:

          I.     Whether the PCRA Court erred in denying the
                 requested relief where ineffective assistance of
                 counsel caused Collazo to enter an involuntary and
                 unknowing plea?

Collazo’s Brief at 4.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.         Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

      Before addressing the merits of Collazo’s issue, we must first determine

whether the PCRA court properly possessed jurisdiction to consider the merits

of Collazo’s first petition.

      The      timeliness   of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections




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9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).2            Finally,

exceptions to the PCRA’s time bar must be pled in the petition, and may not

be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d

521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).



____________________________________________


1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).

2 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking at time-bar exception. See Act
of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to
Collazo’s petition.


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       Here, Collazo’s judgment of sentence became final on February 21,

2017, thirty days after this Court affirmed his judgment of sentence and the

time for filing a petition for allowance appeal to the Pennsylvania Supreme

Court expired.   See 42 Pa.C.S.A. § 9545(b)(3).        Thus, Collazo had until

February 21, 2018, to file a timely PCRA petition. As he filed the petition at

issue on February 28, 2018, it is untimely, unless Collazo has satisfied his

burden of pleading and proving that one of the enumerated exceptions

applies. See Hernandez, supra.

       Collazo has failed to plead and prove an exception to the PCRA’s time

bar.   At the PCRA hearing, the following exchange occurred between the

parties and the PCRA court:

                   [PROSECUTOR]: [B]ut if I can just clear something
         up. I’m not sure if this is untimely. [PCRA] counsel, I think
         in his [amended] petition, as alleged that the PCRA was filed
         - - I think he says February 19th, but it looks on my - -

                  THE COURT: This is the first PCRA?

                  [PCRA COUNSEL]: It is.

                  [PROSECUTOR]: Correct.

                     THE COURT: So even if it’s not timely, I think I
         have to appoint counsel and make a record with regard to
         it. If it’s a second PCRA and untimely, I don’t believe that’s
         necessary, but I think we need to make a record because
         it’s a first filing no matter what, right?

                 [PROSECUTOR]: The file stamp that I have, it
         appears to say February 28th.

                  THE COURT: Isn’t there a prisoner mailbox rule
         with regard to incarcerated defendants?

                  [PROSECUTOR]: There may be, Judge.


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                  THE COURT: I think there is. I think it’s good as
         of the date of mailing. Plus, it’s pretty close because of the
         Superior Court’s order was January 19th, 2017.

                   [THE PROSECUTOR]: Correct.

                   THE COURT: So that would make February 18th
         the cutoff date. And if it’s just a couple days late, I think
         the Superior Court would still want me to make a record on
         the merits. So let’s just move on then and not address the
         jurisdictional claim.

N.T., 7/16/18, at 4-5.

      The PCRA court erred in not first addressing whether it in fact had

jurisdiction.   The PCRA court correctly concluded that, because this was

Collazo’s first PCRA petition, the court should appoint counsel even if the

petition appears untimely. See generally, Commonwealth v. Ferguson,

722 A.2d 177 (Pa. Super. 2018). In addition, under the “prisoner mailbox

rule,” a PCRA petitioner’s pro se PCRA petition is considered filed as of the

date it was handed to prison officials for mailing. Commonwealth v. Allen,

48 A.3d 1283 (Pa. Super. 2012).

      Here, however, there is no indication of when Collazo gave his petition

to prison officials for mailing. In addition, the prisoner mailbox rule had no

application in this case because Collazo acknowledged the untimeliness of his

petition by asserting that he could establish one or more time-bar exception.

See Pro se PCRA Petition, 2/28/18, at 3. PCRA counsel did not discuss these

exceptions in the mistaken belief that Collazo timely filed his PCRA petition.

Nevertheless, our review of Collazo’s petition readily establishes that he did




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not properly plead governmental interference, a newly discovered fact, or a

new constitutional right.

      In sum, because Collazo’s first PCRA petition was untimely and he failed

to plead and prove an exception to the PCRA’s time bar, the PCRA court lacked

jurisdiction to consider the merits of Collazo’s petition. Nevertheless, because

this Court can affirm on any basis supported by the record, Commonwealth

v. Benner, 147 A.3d 915 (Pa. Super. 2016), we affirm the order denying

post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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