Com. v. Aguirre, F.

• Court: Superior Court of Pennsylvania
• Decided: October 12, 2016
• Docket: 527 EDA 2016
• Status: Unpublished

Opinion

J-S64028-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

FERDINAND AGUIRRE

Appellant No. 527 EDA 2016

Appeal from the PCRA Order February 5, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0509651-2003

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.: FILED OCTOBER 12, 2016

Appellant, Ferdinand Aguirre, appeals from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541–9546. The PCRA court found the petition untimely and

therefore not within its jurisdiction. We affirm.

On August 27, 2004, a jury convicted Appellant of third-degree

murder, aggravated assault, and carrying a firearm without a license. On

October 20, 2004, the trial court sentenced him to consecutive terms of

imprisonment of 20-40 years for third-degree murder, 10-20 years for

aggravated assault, and 3½-7 years for carrying a firearm without a license.

Appellant filed a timely appeal, and this Court affirmed his judgment of

sentence on September 30, 2005. Commonwealth v. Aguirre, No. 2921 ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S64028-16

EDA 2004 (Pa. Super. Sept. 30, 2005) (unpublished memorandum).

Appellant did not file a petition for allowance of appeal with the Supreme

Court of Pennsylvania.

Appellant filed his first PCRA petition in 2006. The PCRA court denied

the petition, and this Court affirmed the order denying relief on April 17,

2009. Commonwealth v. Aguirre, No. 647 EDA 2008 (Pa. Super. Apr. 17,

2009). The Supreme Court of Pennsylvania denied Appellant’s petition for

allowance of appeal. Commonwealth v. Aguirre, 983 A.2d 725 (Pa. 2009)

(table).

Appellant filed the instant PCRA petition, his second, on June 1, 2012.

On January 20, 2015, he filed a pro se amended petition 1 in which he

alleged that his sentence was illegal under Alleyne v. United States, 133

S.Ct. 2151 (2013) (any fact that by law increases a mandatory minimum

sentence must be treated as an element of the offense and found by a jury

beyond a reasonable doubt). On May 5, 2015, counsel entered an

appearance and filed a motion for leave to amend the petition. The PCRA

court granted the motion, and counsel filed an amended petition on August

1, 2015, arguing that Appellant was entitled to retroactive application of

Alleyne.

____________________________________________

1 The record is silent as to why no action was taken on the petition between June 1, 2012 and the filing of Appellant’s amended petition in January 2015.

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On December 29, 2015, the PCRA court issued a Criminal Rule 907

notice of intent to dismiss Appellant’s petition on the basis that it was

untimely and Appellant had failed to satisfy any exception to the PCRA’s time

bar. By an order entered February 5, 2016, the PCRA court dismissed

Appellant’s petition as untimely because he failed to establish eligibility for

the “newly-recognized constitutional right” exception to the PCRA’s time bar.

PCRA Op., 2/15/16, at 3-4; see 42 Pa. C.S. § 9545(b)(1)(iii). This appeal

followed.

In this appeal, Appellant raises the following issue, as stated:

Did the PCRA Court err and violate Appellant[’s] Sixth, Eighth and Fourteenth [Amendment] rights under the U.S. Constitution by finding that his PCRA petition asserting an Alleyne claim/Petition was untimely filed?

Appellant’s Brief at 4.

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

petition under the PCRA is “to determine 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. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

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

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

is final, unless the petition alleges and the petitioner proves one of the three

exceptions to the time limitations for filing the petition set forth in Section

9545(b) of the statute. See 42 Pa.C.S. § 9545(b).2

Here, Appellant’s judgment of sentence became final on October 31,

2005, when the thirty-day time period for filing an allocatur petition with the

Supreme Court of Pennsylvania expired. See 42 Pa.C.S. § 9545(b)(3). As

Appellant filed the instant PCRA petition more than six years after his

judgment of sentence became final, it is patently untimely unless Appellant

has satisfied his burden of pleading and proving that one of the three

enumerated exceptions applies.

2 The three 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. § 9545(b)(1).

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In the 2015 amendments to his instant petition, Appellant attempted

to invoke the newly-recognized constitutional right exception enumerated in

42 Pa.C.S. § 9545(b)(1)(iii), based on the U.S. Supreme Court’s decision in

Alleyne. Any petition invoking an exception to the PCRA’s time bar “shall

be filed within 60 days of the date the claim could have been presented.” 42

Pa.C.S. § 9545(b)(2). Alleyne was decided on June 17, 2013. As the PCRA

court noted, Appellant did not file his pro se amended petition citing Alleyne

until January 20, 2015, approximately one and one-half years later. PCRA

Court Opinion, 2/5/16, at 3. Thus, the PCRA court correctly found that

Appellant’s petition was untimely, and that the court therefore lacked

jurisdiction to consider its merits. See id.; Commonwealth v. Leggett, 16

A.3d 1144, 1146-47 (Pa. Super. 2011) (petitioner must invoke newly-

recognized constitutional right exception within sixty days of the date of the

underlying judicial decision that established the right).

Appellant argues that by granting him leave to amend his petition in

May 2015, the PCRA court relieved him of his obligation to raise a claim

based on Alleyne within 60 days of the Alleyne decision. Appellant’s Brief

at 12. Appellant cites no statement by the PCRA court and no other

authority to support this interpretation of the PCRA court’s order. Because

the time limitations in the PCRA are jurisdictional, a PCRA court has no

ability to extend those time deadlines, Commonwealth v. Fahy, 737 A.2d

214, 222 (Pa. 1999), and there is no evidence that the PCRA court had any

intent to try to extend them here. In granting leave to amend once counsel

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was appointed — a fairly common practice in the PCRA context — the court

said nothing about excusing the untimeliness of any claim or restarting the

PCRA’s jurisdictional time bar clock. At most, the court afforded counsel

leave to amend the PCRA petition to add a new claim if one were timely and

viable. The court’s order did not prejudge those issues.3

Appellant’s claim also was subject to dismissal for a second reason:

he could not satisfy the newly-recognized constitutional right exception to

the time bar, which applies only when the court that recognized the new

right has held that the right applies retroactively. See PCRA Court Opinion,

2/5/16, at 3-4; 42 Pa.C.S. § 9545(b)(1)(iii); Commonwealth v. Abdul-

Salaam, 812 A.2d 497, 501-02 (Pa. 2002). The U.S. Supreme Court has

not held that Alleyne applies retroactively to cases on collateral review.

Further, the Pennsylvania Supreme Court has expressly ruled that Alleyne

3 Relying on Commonwealth v. Williams, 828 A.2d 981, 989 (Pa. 2003), Appellant apparently contends that the timeliness of the May 5, 2015 amendment should be assessed by having it relate back to the dates of the earlier petitions Appellant was amending. But, as discussed in the text, the January 20, 2015 amendment in which Appellant first sought to raise the Alleyne issue was filed 1½ years too late, so that a relation of the May 5, 2015 amendment back to that date cannot cure Appellant’s timeliness defect. Appellant’s initial July 1, 2012 petition was filed nearly a year before Alleyne was decided, and it would make no sense to have the May 5, 2015 amendment relate back to that 2012 date for purposes of deciding whether a petition based on a new constitutional right recognized under Alleyne was valid for purposes of Section 9545(b)(1)(iii); as of 2012, no such new constitutional right had yet been recognized. As the text notes, Appellant’s 2012 petition was otherwise untimely by almost six years. Appellant’s relation back theory therefore cannot help his case.

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does not apply retroactively in the PCRA context. Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold that Alleyne does

not apply retroactively to cases pending on collateral review . . . .”). There

is thus no authority for application of the newly-recognized constitutional

right exception to Appellant’s current PCRA petition.

Appellant argues that Alleyne is akin to Miller v. Alabama, 132 S.

Ct. 2455 (2012) (imposition of life sentences on juveniles without possibility

of parole), which was held in Montgomery v. Louisiana, 136 S.Ct. 718

(2016), to be retroactively applicable on collateral review. Appellant’s Brief

at 13-16. The PCRA exception for a newly-recognized constitutional right

nevertheless applies only if the right at issue “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)(iii) (emphasis

added). The short answer to Appellant’s argument is that, in contrast to

Miller, neither the Supreme Court of the United States nor the Supreme

Court of Pennsylvania has held that Alleyne applies retroactively, making

this requirement of Section 9545(b)(1)(iii) unmet. Even if Appellant can

posit some analogy to Miller that would support an argument for either of

those Courts to render a holding of retroactivity, the fact that neither Court

has done so puts an end to the timeliness inquiry in this Court.

Based on the foregoing, the PCRA court correctly concluded that it

lacked jurisdiction to consider Appellant’s untimely PCRA petition. We

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therefore affirm the PCRA court’s order denying Appellant post-conviction

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/12/2016

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