J-S13032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    JASON SERRANO                                   :
                                                    :
                       Appellant                    :   No. 1480 MDA 2019

              Appeal from the PCRA Order Entered August 15, 2019
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001543-2007


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                FILED MARCH 27, 2020

        Jason Serrano (Serrano) appeals pro se from the order denying his

petitions filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9741-9746, in the Court of Common Pleas of Lebanon County (PCRA court).

We affirm.

                                               I.

                                               A.

        We take the following procedural history and factual background from

the PCRA court’s March 2, 2019, and June 8, 2019 opinions and our

independent review of the record.               The Commonwealth filed a Criminal

Information against Serrano charging him with Criminal Homicide, 18 Pa.C.S.


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*   Retired Senior Judge assigned to the Superior Court.
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§§ 2501-2502; Criminal Attempt (Homicide), 18 Pa.C.S. §§ 901(a), 2501-

2502; Aggravated Assault, 18 Pa.C.S. § 2702(a)(1); and Discharge of a

Firearm into an Occupied Structure, 18 Pa.C.S. § 2707.1. The charges related

to his fatal shooting of the victim, George Figueroa, at the Lebanon Cedars

Sports Bar.   The Criminal Information stated that Serrano faced minimum

penalties of 20 years each for Criminal Homicide, Criminal Attempt (Homicide)

and Aggravated Assault, and seven years for Discharge of a Firearm into an

Occupied Structure. The total aggregate minimum sentence reflected on the

Criminal Information was 67 years.

      On May 8, 2008, pursuant to a negotiated guilty plea, Serrano pleaded

guilty to Third Degree Murder.   The Written Guilty Plea signed by Serrano

reflected that the maximum penalties to which he was exposed were 40 years

for Third Degree Murder, 40 years for Criminal Attempt to Commit Homicide,

20 years for Aggravated Assault and seven years on the Discharge of a Firearm

into an Occupied Structure charge, for a total aggregate maximum of 107

years’ imprisonment. (See Written Guilty Plea, 5/08/08, at 1). The Criminal

Information attached thereto had the original minimum sentences for Criminal

Homicide and Criminal Attempt (Homicide) crossed out and replaced with the

handwritten maximums of 40 years. (See Criminal Information attached to

Written Guilty Plea, at 1).

      At the Guilty Plea Hearing, the court conducted a full guilty plea

colloquy, including confirming that Serrano was pleading guilty because he


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committed the acts as described in the Criminal Information and Affidavit of

Probable Cause, and that he understood the charges and the facts underlying

them and the terms of his sentence. (See N.T. Sentencing Hearing, 5/08/08,

at 2-4). The court also confirmed that Serrano could read and write in English;

that he reviewed the Written Guilty Plea with his attorney; that he understood

it, signed it and did not want to change it; that he had no questions; that he

was satisfied with counsel’s representation; and that he wanted to plead

guilty. (See id. 4-5).

      On May 28, 2008, consistent with the plea agreement, the trial court

sentenced Serrano to consecutive terms of not less than 20 nor more than 40

years’ incarceration on the Murder of the Third Degree charge, not less than

ten or more than 20 years on the Criminal Attempt charge, and not less than

three and one-half nor more than seven years on the Discharging a Firearm

charge, for an aggregate term of not less than 33½ nor more than 67 years’

imprisonment. Serrano did not file either a post-sentence motion or a direct

appeal.

                                         B.

      On February 26, 2009, Serrano filed his first PCRA petition, asserting

that he was denied his Sixth Amendment right to counsel because the court

denied his motion for appointment of conflict counsel and that plea counsel

was ineffective for failing to file a direct appeal. The PCRA court appointed

counsel, and ultimately denied the petition after providing Serrano with Rule


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907 notice of its intention to deny it without a hearing.            See Pa.R.Crim.P.

907(1). We affirmed the denial on June 7, 2010, finding that Serrano waived

his   Sixth   Amendment        claim    by     pleading   guilty   and   affirming   the

ineffectiveness issue on the merits. Our Supreme Court denied further review.

(See Commonwealth v. Serrano, Docket No. 1429 MDA 2009, unpublished

memorandum at **4, 10-11 (Pa. Super. filed June 7, 2010), appeal denied,

29 A.3d 797 (Pa. 2011)).

       Serrano filed a second PCRA petition on August 20, 2012, titled as a

Petition for Writ of Habeas Corpus.1 The petition alleged that counsel was

ineffective for advising Serrano to plead guilty to avoid a potential maximum

aggregate sentence of 107 years because he incorrectly calculated Serrano’s

possible maximum sentence that Serrano claimed was 87 years. In spite of

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1 Serrano argues that the court erred in treating his Petitions for Writ of
Habeas Corpus as PCRA petitions. (See Serrano’s Brief, at 3-7). However,
“[w]e have repeatedly held that . . . any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.” Commonwealth
v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011), appeal denied, 47 A.3d 845
(Pa. 2012) (citation omitted). “Unless the PCRA could not provide for a
potential remedy, the PCRA statute subsumes the writ of habeas corpus.”
Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (citations
omitted).       Neither are we persuaded by Serrano’s reliance on
Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999),
Commonwealth v. Judge, 916 A.2d 511, 518-21 (Pa. 2007), and Coady v.
Vaughn, 790 A.2d 287, 290-94 (Pa. 2001) (concurrence), all of which stand
for the proposition that the writ of habeas corpus is to be utilized for claims
falling outside the PCRA’s intended scope, which is to provide the sole means
of collateral review for defendants convicted of crimes they did not commit
and for those serving illegal sentences. See 42 Pa.C.S. § 9542.




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having labeled his filing as a Petition for Writ of Habeas Corpus, Serrano relied

on Lafler v. Cooper, 566 U.S. 156 (2012), and Martinez v. Ryan, 566 U.S.

1 (2012), to argue that his petition was timely because it was subject to the

newly recognized constitutional right exception to the PCRA’s timeliness

requirements.       See 42 Pa.C.S. § 9545(b)(1)(iii).     (See PCRA Petition,

8/20/12, at 1-2) (page numbering provided).

       The August 20, 2012 petition did not contain a proposed order causing

the clerk of courts not to forward it to the PCRA court for review. Serrano

refiled the petition on October 18, 2012, also without a proposed order.2



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2 When Serrano sent a September 2, 2013 letter inquiring about the status of
his 2012 petitions, President Judge John C. Tylwalk replied to Serrano’s
correspondence and suggested that the petitions had not come to the
attention of the PCRA court because they did not contain proposed orders and,
therefore, they had been docketed but not forwarded to the court for action.
The same day, Judge Tylwalk issued a Rule on the Commonwealth, requiring
a response as to why a hearing should not be held on Serrano’s petitions. On
September 24, 2013, the Commonwealth filed its response that indicated a
courtesy copy had been provided to the President Judge’s chambers.

       As stated by the PCRA court:

              For inexplicable reasons outside the knowledge of the
       undersigned jurist, no action has ever been taken on the PCRA
       Petition filed by [Serrano] in 2012. The undersigned jurist was
       not served with nor provided notice of either [Serrano’s] 2012
       Petition or the Commonwealth’s 2013 Response to that Petition.
       Similarly, the undersigned jurist was not made aware of the 2013
       correspondence between the [c]ourt and [Serrano] regarding
       [the] still-pending 2012 Petitions.

(PCRA Court Opinion, 3/02/19, at 6) (page numbering provided).


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                                          C.

      On August 24, 2018, Serrano filed a Writ of Habeas Corpus Ad

Sujeciendum and Nunc Pro Tunc Application that the PCRA court treated as a

second PCRA petition (because it was unaware of the 2012 filing). The 2018

petition again challenged the effectiveness of plea counsel, which Serrano

argued should entitle him to withdraw his guilty plea. Specifically, he argued

that he was unlawfully induced to enter a guilty plea because:

      1) Plea counsel had failed to pursue a meaningful defense
      strategy;

      2) Plea counsel had suggested that the prosecution was
      considering seeking the death penalty;

      3) Plea counsel had colluded with the prosecution by pursuing plea
      bargaining;

      4) Plea counsel failed to facilitate [Serrano’s] wish to withdraw his
      plea; and

      5) Plea counsel failed to pursue a direct appeal.

(Trial Court Opinion, 6/08/19, at 4). The petition also requested that the court

allow him to appeal his judgment of sentence nunc pro tunc because counsel

abandoned him by not filing a direct appeal and the trial court gave him a

deficient plea colloquy.   Although he did not expressly identify the newly

recognized constitutional right exception, he relied on the rules announced in




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Lafler and Missouri v. Frye, 566 U.S. 134 (2012), in support of his petition.

(See PCRA Petition, 8/24/18, at 7).3

       On October 31, 2018, the court served Serrano with Rule 907 notice of

its intention to dismiss the petition without a hearing because it was untimely

with no timeliness exception pleaded or proven, and the claims were either

waived or previously litigated. On January 29, 2019, after giving Serrano two

extensions of time within which to file a response, the court dismissed the

petition for his failure to respond to the proposed dismissal. Serrano timely

appealed.

                                               D.

       When reviewing the electronic docket entries to prepare a Rule 1925(a)

statement, the PCRA court discovered (1) that Serrano had, in fact, filed a

response to the proposed dismissal on January 28, 2019, without sending a

copy to the PCRA court requesting nunc pro tunc review of his August 20,

2012 petition, and (2) due to the 2012 petition’s existence, the 2018 petition

was actually Serrano’s third, not his second PCRA.

       In light of the foregoing discoveries, on March 6, 2019, the PCRA court

vacated its January 29, 2019 order and requested that this Court remand the

case to allow the PCRA court: (1) to address Serrano’s second PCRA petition



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3See footnote 8 for an explanation of the principles enunciated in Frye and
Lafler.


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filed August 20, 2012; and (2) to consider the third petition filed on August

29, 2018, in light of Serrano’s January 28, 2019 response to the October 31,

2018 Rule 907 notice. On April 8, 2019, this Court remanded the case to the

PCRA court.

       On August 15, 2019, after its review, the PCRA court dismissed

Serrano’s second and third PCRA petitions as untimely, with no exception

pleaded or proven. Serrano timely appealed and he and the court complied

with Rule 1925.4 See Pa.R.A.P. 1925.

                                               II.

       On appeal, Serrano phrases his issue as “whether this pro se brief upon

appeal from the PCRA court’s August 15, 2019, final dismissal order merit[s]

redress is a question of exceptional circumstances-and-the law[.]” (Serrano’s

Brief, at 1). He argues that plea counsel was ineffective for failing “to conduct

a pretrial investigation” or “provid[e] a meaningful trial strategy” and for

colluding with the Commonwealth to induce him to enter a guilty plea by

proving him with an altered bill of information. (Id. at 2, 9-15).5

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4 “Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and is
free of legal error. The PCRA court’s findings will not be disturbed unless there
is no support for the findings in the certified record.” Commonwealth v.
Saunders, ___ A.3d ___, 2020 WL 113401, at *2 (Pa. Super. filed Jan. 10,
2020) (citations and internal quotation marks omitted).

5Serrano also claims and that the trial court erred in his guilty plea colloquy
by “failing to adduce the factual basis for the plea, pursuant to Pa.R.Crim.P.



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       Before we reach the merits of Serrano’s appeal, we must consider

whether the PCRA court properly found that his PCRA petitions were untimely.

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

As such, this statutory time-bar implicates the [C]ourt’s very power to

adjudicate a controversy and prohibits a court from extending filing periods

except as the statute permits.” Commonwealth v. Robinson, 139 A.3d 178,

185 (Pa. 2016) (citations omitted). Under the PCRA, any petition for relief

must be filed within one year of the date on which the judgment of sentence

becomes final. See 42 Pa.C.S. § 9545(b)(1). “A judgment becomes final for

purposes of the PCRA 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.” Robinson,

supra at 185 (internal quotation marks and citation omitted).

       Here, Serrano’s judgment of sentence became final on June 27, 2008,

after the 30-day period to file an appeal of his judgment of sentence expired.

See 42 Pa.C.S. § 9545(b)(3). As a result, he had until June 27, 2009, to file


____________________________________________


590.” (Serrano’s Brief, at 15; see id. at 15-18). As detailed above, the court
conducted a thorough colloquy at which Serrano confirmed that he signed the
written Guilty Plea, and that he understood and admitted to the facts as stated
in the Affidavit of Probable Cause and Criminal Information. (See N.T. Guilty
Plea Hearing, 5/08/08, at 2-5). A review of the notes of testimony confirms
that the trial court did not commit an “error of constitutional significance” and
that the colloquy met the requirements of Rule 590. (Serrano’s Brief, at 15).




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a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Because Serrano filed

the instant petitions on August 20, 2012, and August 24, 2018, they are

untimely on their faces, and the PCRA court lacked jurisdiction to review them,

unless he pleaded and proved one of the statutory exceptions to the time-bar.

See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).6 “If the [PCRA] petition is determined to

be untimely, and no exception has been pled and proven, the petition must

be dismissed . . . because Pennsylvania courts are without jurisdiction to

consider the merits of the petition.” Commonwealth v. Jackson, 30 A.3d

516, 519 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation

omitted).

       Serrano argues the applicability of the newly discovered facts exception

found in Section 9545(b)(1)(ii). (See Serrano’s Brief, at 10 (“Specifically, this

application is premised upon ‘Newly Discovered Facts[]” pursuant to 42

Pa.C.S. § 9545(b)(1)(ii).”); (see also id. at 20). He alleges that this newly

discovered fact is the Bill of Information he allegedly saw for the first time on




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6 The three exceptions that allow for review of an untimely PCRA petition are
limited to:   (1) the petitioner’s inability to raise a claim because of
governmental interference; (2) the discovery of previously unknown facts that
would have supported a claim; and (3) a newly recognized constitutional right.
See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these
exceptions “shall be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).




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July 16, 2012.7 (See id. at 11). He maintains that this filed Bill of Information

is different from the one shown to him by counsel at the guilty plea hearing

“to compel the plea-offer without [his] true comprehension and consent.” (Id.

at 13).

       Our Supreme Court has described the Section 9545(b)(1)(ii) exception

as one, “which permits an untimely claim where 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, as an exception for after-

discovered evidence.” Commonwealth v. Pursell, 749 A.2d 911, 916 (Pa.

2000) (citation and internal quotation marks omitted).

       Here, while the original Bill of Information filed on August 22, 2007,

reflected the minimum sentence for each charge, the information attached

to the Written Guilty Plea had those sentences crossed out at Counts I and II,

with the maximum sentences to which Serrano was exposed should he be

found guilty at trial written in.      (See Criminal Information, 8/22/07, at 1;



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7 In its June 8, 2019 opinion, the PCRA court observed that Serrano attempted
to avail himself of the newly discovered facts exception in his August 24, 2018
petition, but that he failed to identify what facts were unknown to him, other
than his general lack of legal knowledge. (See PCRA Ct. Op., 6/08/19, at 10-
11). A review of the petition confirms the PCRA court’s observation and, in
fact, Serrano did not expressly raise the timeliness exception. However,
although generally, “[i]ssues not raised in the lower court are waived and
cannot be raised for the first time on appeal[,]” Pa.R.A.P. 302(a), and in the
interest of judicial economy, we decline to find waiver and will review
Serrano’s claim.


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Written Guilty Plea, at attached edited Criminal Information).         However,

Serrano’s argument that this edited information somehow misled him is

specious at best where he acknowledged in the signed Guilty Plea that those

were the maximum penalties he faced if convicted by a jury, i.e., 40 years for

criminal homicide (F1), 40 years for criminal attempt (F1), 20 years for

aggravated assault (F1) and seven years for discharge of a firearm into an

occupied structure (F3). (See Written Guilty Plea, at 1). In other words, the

edited Bill of Information and Written Guilty Plea colloquy both correctly reflect

that Serrano faced a maximum term of imprisonment of 107 years if

convicted.    (See Guilty Plea, at 1; see id. at attached Information).

Therefore, because this edited Criminal Information is not incorrect and

cannot be said to have unlawfully induced Serrano’s plea, it does not contain

facts upon which his claim of ineffective assistance of counsel could be

predicated. Hence, Serrano has failed to plead and prove the applicability of

the newly discovered facts exception to the PCRA’s timeliness requirements.

      We also note that, although he does not explicitly plead the newly

recognized constitutional right exception, Serrano again relies on the rules

enunciated in Lafler and Frye, as he did in his PCRA petitions. (See Serrano’s

Brief, at 12); (see also Serrano’s PCRA Petition, 8/20/12, at 1-2; Serrano’s




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PCRA Petition, 8/24/18, at 7).8 However, even if we interpret Serrano’s Brief

as an inartful attempt to plead this timeliness exception, these cases would

not afford him any relief.

              Subsection (iii) of Section 9545(b)(1) has two requirements.
       First, it provides that the right asserted is a constitutional right
       that was recognized by the Supreme Court of the United States or
       th[e Pennsylvania Supreme C]ourt after the time provided in this
       section. Second, it provides that the right “has been held” by
       “that court” to apply retroactively. Thus, a petitioner must
       prove that there is a “new” constitutional right and that the
       right “has been held” by that court to apply
       retroactively . . . to cases on collateral review.

Commonwealth v. Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (citation

omitted) (emphasis in original).

       This Court has expressly held that Lafler and Frye cannot form the

basis of the newly recognized constitutional right exception because they did

not create a new constitutional right, but only applied the long-established




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8  Although he attempted to rely on Martinez in support of the newly
recognized constitutional right exception in his August 20, 2012 petition, he
has abandoned such reliance here. In any event, we observe that Martinez
would not afford him relief. The Martinez Court held that the inadequate
assistance of counsel at “initial-review collateral proceedings may establish
cause for a prisoner’s procedural default of a claim of ineffective assistance of
trial counsel” for purposes of federal habeas corpus relief. Martinez, supra
at 1315. However, this Court has held that Martinez has no relevance to the
procedural time-bar of the PCRA and, specifically, to the newly recognized
constitutional right exception. See Commonwealth v. Saunders, 60 A.3d
162, 165 (Pa. Super. 2013).




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right of effective assistance of counsel to the plea bargaining process. See

Commonwealth v. Hernandez, 79 A.3d 649, 654 (Pa.Super. 2013).9, 10

       Therefore, because Serrano has failed to plead and prove any timeliness

exception, we affirm the order of the PCRA court dismissing his August 24,

2012, and August 20, 2018 petitions as untimely.

       PCRA order affirmed.




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9 Moreover, even if they could support the timeliness exception, they would
not apply here because they are factually distinguishable. The Lafler Court
held that a defendant who rejected a plea offer could establish the prejudice
prong of an ineffective assistance of counsel claim by showing that, but for his
defense counsel’s ineffective advice, there was reasonable probability that the
plea offer would have been presented to the court, that the court would have
accepted the plea, and that the judgment under the offer’s terms would have
been less severe than the judgment imposed. See Lafler, supra at 168. This
is inapplicable here where Serrano accepted a plea and now complains about
its terms. Similarly, in Frye, the Court held that the defendant established a
claim of ineffective assistance of counsel where counsel failed to advise him
of the Commonwealth’s plea offer. See Frye, supra at 145. Frye is
inapplicable here where Serrano does not claim that counsel failed to tell him
about the prosecution’s plea offer and he actually accepted the offer’s terms.

10  For sake of completeness, although Serrano fails to expressly argue the
governmental interference exception, even if his claims of counsel’s
ineffectiveness were an attempt to do so, he would be due no relief because
it is well-settled that the alleged ineffective assistance of counsel cannot serve
as the basis for a claim of governmental interference. Commonwealth v.
Pursell, 749 A.2d 911, 916 (Pa. 2000) (citation omitted); see 42 Pa.C.S. §
9545(b)(4).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/27/2020




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