J-S65026-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
CARLOS SATIZABAL                               :
                                               :
                Appellant                      :   No. 825 EDA 2017

                 Appeal from the PCRA Order February 10, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0707171-1999


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 16, 2018

        Carlos Satizabal appeals pro se from the order entered on February 10,

2017, in the Court of Common Pleas of Philadelphia County, that dismissed as

untimely, his serial petition seeking relief pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.           Satizabal seeks

collateral relief from the judgment of sentence imposed on September 12,

2011, after a jury found him guilty of attempted murder, aggravated assault,

possessing an instrument of crime, and two counts of recklessly endangering

another person.1 Satizabal raises three issues, which we distill to one claim,

namely, Satizabal’s judgment of sentence cannot be considered final for

purposes of PCRA timeliness requirements due to a breakdown in the




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1   18 Pa.C.S. §§ 2502, 2702, 907, and 2705, respectively.
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operation of the court, namely, the failure to docket the order denying post-

sentence motions. Based upon the following, we affirm.

      Previously, the Court discussed the facts of this case, as follows:

      On the evening of April 8, 1999, the victim and several friends
      were at a recreational center playing basketball. Thereafter, as
      the group sat on bleachers outside the center, [Satizabal]
      approached them, asking if they knew someone named “Bob
      Kashnoski.” Despite the fact that the group told them they did not
      know of such a person, [Satizabal] repeated the question several
      times. [Satizabal] left and then returned a short while later;
      pacing, staring at the group and again asking whether they knew
      someone named “Bob Kashnoski.” The victim told [Satizabal] they
      didn’t know the individual [Satizabal] was looking for, they didn’t
      want any trouble and that [Satizabal] should leave. [Satizabal]
      responded by exclaiming several times, “I’ll beat your ass!” and
      then pulled out a gun and shot the victim at close range in the
      groin. As the victim and his friends fled, [Satizabal] shot at the
      victim twice more.

Commonwealth v. Satizabal, 816 A.2d 334 (Pa. Super. 2002) (unpublished

memorandum).

      As stated above, a jury found Satizabal guilty of attempted murder,

aggravated assault, and related crimes, and the trial court imposed a 20-to-

40 year sentence of imprisonment. On direct appeal, this Court affirmed the

judgment of sentence on November 4, 2002.         See Satizabal, supra. No

further review was sought.

      On February 26, 2003, Satizabal filed a pro se PCRA petition. Counsel

was appointed and filed an amended petition on August 7, 2003.        Following

the issuance of Pa.R.A.P. 907 notice of intent to dismiss on April 27, 2004, the

PCRA court dismissed the petition on June 29, 2004. Satizabal filed an appeal



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on August 31, 2004, and this Court quashed the appeal as untimely. See

Commonwealth v. Satizabal, 883 A.2d 694 (Pa. Super. 2005), appeal

denied, 897 A.2d 455 (Pa. 2006).

      On March 28, 2011, Satizabal filed a second pro se PCRA petition. On

October 31, 2011, the PCRA court issued notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907. On May 17, 2012, an amended PCRA petition was filed,

and a supplemental amended PCRA petition was filed on June 28, 2012. The

PCRA court denied the PCRA petition as untimely on August 6, 2012.

      On May 17, 2013, Satizabal filed a motion to vacate illegal sentence,

which was treated as a counseled PCRA petition. On June 27, 2014, the PCRA

court issued Rule 907 notice, and the petition was dismissed on July 10, 2014.

      On November 23, 2015, Satizabal filed a pro se PCRA petition.        The

PCRA court issued Rule 907 notice on July 13, 2016, and on August 23, 2016,

dismissed Satizabal’s PCRA petition.

      In the mean time, on August 15, 2016, Satizabal filed a petition for writ

of habeas corpus.     On November 10, 2016, Satizabal filed a petition to

supplement his habeas petition. On January 10, 2017, the PCRA court issued

a Rule 907 notice, indicating the court would treat Satizabal’s habeas petition

as a PCRA petition.    The PCRA court formally dismissed the petition on

February 10, 2017. This timely appeal followed.

       “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court’s findings of fact are supported by the record, and whether its




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conclusions of law are free from legal error.” Commonwealth v. Cox, 146

A.3d 221, 226 (Pa. 2016).

     The PCRA time limits are jurisdictional. As the Pennsylvania Supreme

Court explained in Cox, supra:

     The PCRA requires that a petition seeking relief thereunder must
     be filed within one year of the date the petitioner’s judgment of
     sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1);
     Commonwealth v. Jones, 617 Pa. 587, 54 A.3d 14, 16 (Pa.
     2012). “[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)]. This timeliness requirement is jurisdictional in
     nature, and a court may not address the merits of any claim raised
     unless the petition was timely filed or the petitioner proves that
     one of the three exceptions to the timeliness requirement applies.
     Jones, 54 A.3d at 16. These exceptions are:

         (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).

146 A.3d at 227.




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       Here, there is no question that Satizabal’s petition is facially untimely.2

However, Satizabal does not attempt to assert any of the statutory exceptions

to the PCRA time bar. Rather, he contends that the order denying his post-

sentence motion was never entered on the docket and, therefore, this Court

did not have jurisdiction to issue an order affirming the judgment of sentence.

See Satizabal’s Brief at 10. He asserts that without the order entered on the

docket, the “judgment of sentence cannot be considered final, and the

expiration of time for seeking [d]irect [r]eview has not legally ended.” Id.

He further argues that “because his [j]udgment of [s]entence has not legally

ended,” … the PCRA [c]ourt cannot have [j]urisdiction,” and “[f]rom

[Satizabal’s] first PCRA 2/26/03 to the present PCRA should have been

considered premature and all of the Orders that followed must be considered

a nullity.” Id. at 11.3 Satizabal concludes that the denial of his post-sentence

motion was not appealable because it was not entered on the docket. Id. at

13. Therefore, he posits “[Satizabal’s] Direct/PCRA review was illegal and a

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2 This Court affirmed Satizabal’s judgment of sentence on November 4, 2002.
Thereafter, Satizabal’s judgment of sentence became final on December 4,
2002, when he did not file a petition for review in the Pennsylvania Supreme
Court within the 30-day filing period. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.
1113. Thereafter, he had one year, or until December 4, 2003, to file timely
petition. See 42 Pa.C.S. § 9545(b)(1). The present petition was filed on
August 15, 2016, more than 13 years after his judgment of sentence became
final.

3Satizabal also claims that “[t]he order denying [his] first PCRA [petition] was
also never entered into the docket[] as well, because of that, the Superior
Court’s 7/29/05 [o]rder to [q]uash [Satizabal’s] first PCRA [appeal] as
untimely was an error.” Id. at 11-12.

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[n]ullity, and [Satizabal] must be able to re-file once the Order is entered into

the docket.” Id. at 14.

       Satizabal’s arguments warrant no relief.       First, Satizabal failed to

present the above claims in his PCRA petition and therefore these claims are

waived. See Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (finding

claim never raised in any PCRA petition, and raised for first time in

supplemental P.R.A.P. 1925(b) statement waived).         Even if his arguments

were not waived, Satizabal has failed to invoke any statutory exception to the

PCRA time-bar in making these claims. See Commonwealth v. Jones, 54

A.3d 14, 17 (Pa. 2012) (“[Section] 9545 clearly dictates the PCRA court had

no jurisdiction to entertain the instant petition unless appellant pled and

proved one of the three statutory exceptions.”). Moreover, the PCRA confers

no authority upon the courts to fashion ad hoc equitable exceptions to the

PCRA. See Commonwealth v. Robinson, 139 A.3d 178, 187 (Pa. 2016)

(This Court has no authority to carve out equitable exceptions to [the PCRA]

statutory provisions[.]”.) Therefore, Satizabal’s petition fails to overcome the

PCRA’s timeliness requirements.

       Accordingly, we affirm the order of the PCRA court that dismissed

Satizabal’s petition as untimely.4

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4
 In any event, Satizabal’s substantive argument is meritless. The certified
record reflects Satizabal’s post-sentence motions were denied on September



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       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/18




____________________________________________


19, 2001, and the notice of appeal “from the judgment of sentence entered
on the 12th of September, 2001, and the denial of Post Trial Motions on the
19th day of September, 2001,” was filed on October 15, 2001. Notice of
Appeal, 10/15/2001. See Orders, 9/19/2001. See also 2840 EDA 2001
(Superior Court docket). Even if the order denying Satizabal’s post-sentence
motion was not entered on the trial court docket, Satizabal apparently
received the September 19, 2001 order, because he filed his appeal less than
thirty days later. As such, the absence of the order from the docket entries
does not affect this Court’s jurisdiction of Satizabal’s direct appeal. See
Commonwealth v. Carter, 122 A.3d 388, 391 (Pa. Super. 2015) (stating
that “[w]e will regard as done that which ought to have been done”; treating
appeal timely despite clerk of courts’ failure to inscribe date of service on
docket); Commonwealth v. Howard, 659 A.2d 1018, 1021 n.12 (Pa. Super.
1995) (accepting notice of appeal despite clerk of court’s failure to enter
appealable order).


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