J-S26021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSUE GONZALEZ                             :
                                               :
                       Appellant               :   No. 2859 EDA 2017

                  Appeal from the PCRA Order August 11, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009537-2007


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

MEMORANDUM BY BOWES, J.:                              FILED OCTOBER 04, 2018

       Josue Gonzalez appeals the August 11, 2017 order dismissing his PCRA

petition as untimely. We affirm.

       Appellant pled guilty on February 22, 2008, to involuntary deviate

sexual intercourse, first degree robbery, conspiracy, and carrying a firearm

without a license.1 He was sentenced on May 30, 2008, to twenty-five to fifty

years imprisonment.         Appellant filed a petition for reconsideration of his

sentence and, following a hearing, his sentence was reduced to fifteen to thirty

years incarceration on June 13, 2008. He did not file a direct appeal.

       Appellant filed his first PCRA petition on April 28, 2011, and counsel was

appointed.      Counsel filed a Turner/Finley no-merit letter and sought
____________________________________________


1Appellant was charged with numerous felony offenses involving a thirteen-
year-old victim, including rape. We are unable to discern the specific facts
underlying his convictions as there was no trial, and the plea and sentencing
proceedings were not transcribed.
____________________________________
* Former Justice specially assigned to the Superior Court.
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permission to withdraw. The PCRA court dismissed the PCRA petition on March

22, 2013, and granted counsel’s petition to withdraw.

       On April 4, 2013, Appellant filed the instant petition styled as a petition

for writ of habeas corpus. In the petition, he challenged the discretionary

aspects of his sentence.        He also alleged that an improper edition of the

sentencing guidelines had been utilized in sentencing him, and hence, his

sentence was illegal. Finally, he challenged the sufficiency and weight of the

evidence. Privately retained counsel entered an appearance on Appellant’s

behalf, but sought leave to withdraw after concluding that Appellant’s petition

lacked merit. New private counsel entered an appearance, but took no action

of record. Appellant filed a pro se supplement to his petition for writ of habeas

corpus on February 12, 2016, which he maintained was timely as it was filed

within sixty days of the decision in Montgomery v. Louisiana, 136 S. Ct.

718 (2016).2

       In a letter brief submitted to the court, the Commonwealth contended

that the petition was an untimely PCRA and requested dismissal, as Appellant

had failed to plead or prove any exception to the one-year time-bar. On June


____________________________________________


2  In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the U.S. Supreme
Court held that Miller v. Alabama, 132 S. Ct. 2455 (2012), which prohibited
the sentencing of juveniles to mandatory life in prison without possibility of
parole, constituted a new substantive rule of constitutional law that was to be
retroactively applied to those whose convictions had become final. Appellant
does not explain, nor can we glean from his brief, how Montgomery is
implicated herein.

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26, 2017, Appellant filed a pro se answer opposing dismissal.        His second

privately-retained attorney sought permission to withdraw.

      On July 6, 2017, the court granted the Commonwealth’s motion to

dismiss the PCRA as untimely, and permitted both private attorneys to

withdraw. By order dated August 11, 2017, the PCRA court formally dismissed

the PCRA petition as untimely and without merit.

      Appellant timely appealed pro se, and complied with the PCRA court’s

order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In its Rule 1925(a) opinion, the court found the petition untimely as

it was filed more than one year after the judgment of sentence became final,

and Appellant had failed to plead and prove any applicable exception to the

PCRA time-bar.

      Appellant presents four issues for our review:

      [I.] The court of common pleas, criminal division lacked
      jurisdiction over the Appellant by sentencing him under the sixth
      edition. The sixth edition were [sic]not in effect at the time of his
      offense. The fifth edition was in full effect Appellant’s sentence is
      illegal, wrong guidelines was apply [sic] and he is entitled to be
      resentenced. “Ex Post Facto Clauses Art”?

      [II.] The court erred in violation of the United States Constitution,
      the Pennsylvania Constitution and their treaties made under the
      due process and equal protection of the laws, state and federal
      constitutions. Appellant was sentenced to a multiple offences [sic]
      pursuant to mandatory minimum sheme [sic] deemed facially
      unconstitutional?

      [III.] Was trial counsel ineffective for failing to guarantee
      Appellant’s constitutional right to an appeal?




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       [IV.] Whether the lower court erred in dismissing appellant’s state
       writ of habeas corpus, he challenge [sic] the legality of the
       sentence, to be unconstitutional, and was dismissed under
       another person issues, stating that he issues raised by unknown
       person Josue Gonzalez, CP-51-CR-006134-2010, are without
       merit?

Appellant’s brief at 4 (unnecessary capitalization omitted).3

       The court below concluded that Appellant’s habeas petition should be

treated as a PCRA petition.         We agree. Our Supreme Court explained in

Commonwealth v. Descardes, 136 A.2d 493, 499 (Pa. 2016), that the

General Assembly intended that claims that could be brought under the PCRA

must be brought under that Act. Other statutory and common law remedies

“for the same purpose” are “encompassed” within the PCRA.           Id.   Illegal

sentencing claims are cognizable under the PCRA. See Commonwealth v.

Montgomery, 181 A.3d 359, 367 (Pa.Super. 2018) (en banc). To the extent

that Appellant’s issues implicate ineffective assistance of counsel, the PCRA

provides eligibility for such claims. 42 Pa.C.S. § 9543(a)(2); Commonwealth

v. Turner, 80 A.3d 754, 767 (Pa. 2013). Habeas corpus relief is not available

for claims of due process violations and other trial court error that could have

been raised on direct appeal, but were not.        Commonwealth v. Abdul-

Salaam, 808 A.2d 558, 560 (Pa. 2001).            Thus, the PCRA court properly

treated Appellant’s habeas petition raising such claims as a PCRA petition.



____________________________________________


3We note that several of Appellant’s issues were not raised in his original or
supplemental petitions or in his court-ordered Pa.R.A.P. 1925(b) statement.

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      Our standard of review from the denial of PCRA relief is whether the

PCRA court’s findings are supported by the record and free of legal error.

Commonwealth v. Watkins, 108 A.3d 692, 701 (Pa. 2014). In conducting

our review, the PCRA court’s credibility determinations, when supported by

the record, are binding on this Court; however, we apply a de novo standard

of review to the PCRA court’s legal conclusions. Id.

      Generally, a PCRA petition, including a second or subsequent petition,

must be filed within one year of the date the judgment is final, unless the

petitioner alleges and proves that one of the three exceptions to the time bar

applies. “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).”      Commonwealth v.

Hernandez, 79 A.3d 649, 650 (Pa.Super. 2013).                The time bar is

jurisdictional, and the court may not ignore it in order to reach the merits of

the petition. Id.

      Herein, judgment of sentence became final on July 13, 2008, when

Appellant did not file a direct appeal to this Court. Thus, any PCRA petition,

in order to be timely, had to be filed on or before July 13, 2009. The instant

petition filed on April 4, 2013, was filed almost four years too late. Thus, we

have no jurisdiction to entertain the petition unless Appellant pled and proved

one of the exceptions to the time-bar set forth in § 9545.


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       There are three exceptions to the PCRA’s one-year time limitation:

       (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. § 9545(b)(1)(i)-(iii). Moreover, in order to invoke one of these

exceptions, the petition must be filed within sixty days of the date the claim

could first have been presented. Id. at (b)(2).

       Appellant does not assert or prove any exception to the time-bar.4 For

this reason, we find that the PCRA court properly dismissed Appellant’s

petition as untimely.

       Order affirmed.




____________________________________________


4 Appellant argued that his legality of sentence claims could not be waived,
an incorrect statement of the law in the context of the PCRA. Only a timely
PCRA petition affords collateral relief to persons serving illegal sentences. See
e.g. Commonwealth v. Dimatteo, 177 A.3d 182 (Pa. 2018) (reaffirming
that Alleyne does not invalidate a mandatory minimum sentence when
presented in an untimely PCRA petition).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/18




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