J-S61015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                       v.

ROLANDO BARBON ZURITA

                             Appellant                No. 1625 EDA 2017


                   Appeal from the PCRA Order April 26, 2017
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0005792-2004


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

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 10, 2017

        Rolando Zurita appeals pro se from the order, entered in the Court of

Common Pleas of Chester County, dismissing his petition as untimely filed

under the Post Conviction Relief Act, (PCRA), 42 Pa.C.S.A. §§ 9541-46. We

affirm.

        On July 25, 2005, Zurita entered an open guilty plea to ten (10)

counts of possession with intent to deliver (PWID) and six (6) counts of

criminal conspiracy.        The court sentenced Zurita on December 2, 2005 to

fifteen (15) to thirty (30) years’ imprisonment. Zurita filed a direct appeal,

which this Court dismissed. On October 11, 2006, Zurita filed a pro se PCRA

petition alleging ineffective assistance of counsel.       The court appointed

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*   Retired Senior Judge assigned to the Superior Court.
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counsel and, on November 17, 2006, the PCRA court granted Zurita’s

petition seeking leave to file a direct appeal nunc pro tunc.    Zurita filed a

notice of appeal on December 13, 2006; one month later, after consultation

with counsel, he withdrew his appeal and, instead, filed a second PCRA

petition.    On March 6, 2009, the PCRA court granted Zurita’s petition,

vacated his judgment of sentence, allowed him to withdraw his guilty plea,

reinstated the withdrawn charges,1 and directed the court administrator to

list the case for trial.

       On May 15, 2009, Zurita again entered a guilty plea, this time

negotiated, and the court sentenced him to an aggregate term of

imprisonment of fourteen (14) to thirty (30) years’ imprisonment. No direct

appeal was filed.

       Five years later, on June 11, 2014, Zurita filed a pro se PCRA petition.

The court appointed counsel, and, thereafter, counsel was granted leave to

withdraw under Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). On April 13,

2015, after the court had issued a Pa.R.Crim. 907 notice of intent to dismiss

and Zurita had filed a response, the court dismissed Zurita’s petition as

untimely. On appeal, this Court affirmed. Commonwealth v. Zurita, 134



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1In exchange for the open plea, the Commonwealth had agreed to withdraw
numerous charges.



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A.3d 504 (unpublished memorandum, filed November 25, 2015).2                          On

September 23, 2016, the Pennsylvania Supreme Court denied allowance of

appeal. Commonwealth v. Zurita, 158 A.2d 72 (Pa. 2016).

       Before us now is Zurita’s second petition, filed on February 7, 2017,

which he captioned a petition for habeas corpus, and which the PCRA court

properly treated as a PCRA petition. See 42 Pa.C.S.A. § 9542 (PCRA is sole

means by       which    defendant     may      obtain   collateral relief);   see also

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)

(recognizing courts are to construe all motions defendant files after

judgment      of    sentence      has     become        final   as   PCRA     petitions);

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(“[T]he [PCRA] provides the sole means for obtaining collateral review, and

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2 Zurita argued in that petition that his sentence was illegal under Alleyne
v. United States, 133 S. Ct. 2151 (2013) (holding any fact that increases
mandatory minimum sentence must be submitted to jury). We noted that
Alleyne was decided on June 17, 2013, almost one year before Zurita filed
his June 11, 2014 petition; thus, Zurita failed to file his petition within 60
days of the Alleyne decision. Therefore, it was untimely. See 42 Pa.C.S.A.
§ 9545(b)(2); see also Commonwealth v. Gamboa-Taylor, 753 A.2d
780, 783 (Pa. 2000) (“[W]hen a PCRA petition [is] entitled to one of the
[section 9545(b)(1)] exceptions, but [is] not filed within 60 days of the date
that the claim could have been first brought, the PCRA court has no power to
address the substantive merits of a petitioner’s PCRA claim.”);
Commonwealth v. Baldwin, 789 A.2d 728 (Pa. Super. 2001) (with regard
to after-recognized constitutional right, this Court has held that sixty-day
period begins to run upon date of underlying judicial decision).




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. . . any petition filed after the judgment of sentence becomes final will be

treated as a PCRA petition.”). The PCRA court determined Zurita's petition

was untimely and dismissed it by order dated April 4, 2017.       This appeal

followed.   Zurita raises one issue:   whether the PCRA court abused its

discretion in dismissing the petition as untimely where a defect in the

criminal information vitiates the judgment, eliminating timeliness as a bar?

      The PCRA statute directs that any PCRA petition, including a second or

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

judgment becomes final unless the petitioner proves an exception. 42

Pa.C.S.A. § 9545(b)(1). “[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.A. § 9545(b)(3).         Further, any

petition claiming an exception under § 9545(b)(1) must be filed within 60

days of the date the claim could have been presented.         42 Pa.C.S.A. §

9545(b)(2). “[T]he PCRA’s timeliness requirements are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely PCRA petitions.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (quoting

Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003)).

      Here, Zurita was sentenced on May 15, 2009. No direct appeal was

filed. His judgment of sentence, therefore, became final on June 15, 2009.

Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Absent an exception, Zurita

had one year to file his petition, or until June 15, 2010.    42 Pa.C.S.A. §

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9545(b)(1).     Zurita asserts that the criminal information was defective in

that it failed to specify the specific dates or essential elements of the crimes

with which he was charged. However, he does not assert an exception to

the time bar under section 9545(b)(1).3

        Because Zurita failed to timely file his petition and failed to plead and

prove an exception to the time bar under section 9545(b)(1), the PCRA court

did not have jurisdiction to address his claims. We conclude, therefore, that

the PCRA court properly dismissed Zurita’s petition as untimely.4
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3   Section 9545(b) provides:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (i) the failure to raise the claim previously was the result
           of interference by 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)-(iii).
4 To the extent that Zurita attempts to frame his claim as a violation of his
constitutional right to due process or as one affecting the jurisdiction of the
(Footnote Continued Next Page)


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             Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




(Footnote Continued) _______________________

lower court, we note that even had Zurita pled and proved an exception to
the time bar, the claim is waived. See 42 Pa.C.S.A. § 9544(b) (“For
purposes of this subchapter, an issue is waived if the petitioner could have
raised it but failed to do so before trial, at trial, during unitary review, on
appeal or in a prior state postconviction proceeding.”).



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