Com. v. Bueno, V.

Opinion

J-S10043-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT : OF : PENNSYLVANIA v. : : : VICTOR BUENO : : Appellant : : No. 822 MDA 2025

Appeal from the PCRA Order Entered June 9, 2025 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0000297-2022

BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 23, 2026

Appellant, Victor Bueno, appeals pro se from the June 9, 2025 order

denying his first petition filed under the Post Conviction Relief Act (PCRA)

42 Pa.C.S. §§ 9541-46. After review, we affirm.

The relevant facts of this case were aptly summarized by a prior panel

of this Court. See Commonwealth v. Bueno, 484 MDA 2023, 2024 WL

510987, at *1-2 (Pa. Super. filed February 9, 2024) (unpublished

memorandum). Briefly, Appellant was convicted of possession with intent to

deliver a controlled substance, possession of a stolen gun, and related J-S10043-26

offenses. See id.1 Appellant filed a direct appeal to this Court, and we

affirmed his judgment of sentence on February 9, 2024. See id. at *4.

Appellant did not file a timely petition for allowance of appeal to our

Supreme Court. However, on May 28, 2024, Appellant filed a petition for leave

to file a petition for allowance of appeal nunc pro tunc. Our Supreme Court

denied the petition for allowance of appeal nunc pro tunc on November 19,

2024. Order, 11/19/24, 77 MM 2024 (single page).

Appellant subsequently filed a pro se PCRA petition that was docketed

on March 24, 2025. On March 26, 2025, the PCRA court appointed PCRA

counsel. On May 19, 2025, PCRA counsel filed a Turner/Finley no-merit

letter2 and a petition to withdraw as counsel. On May 20, 2025, the PCRA

court issued a notice of intention to dismiss the petition without hearing

pursuant to Pa.R.Crim.P. 907.

The PCRA court dismissed Appellant’s PCRA petition on June 9, 2025.

Order, 6/9/25. Appellant filed a timely appeal, and both the PCRA court and

Appellant have complied with Pa.R.A.P. 1925.

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1 18 Pa.C.S. § 3925(a) (receiving stolen property); 18 Pa.C.S. § 6105(a)(1)

(persons not to possess firearms); 35 P.S. § 780-113(a)(30) (possession with intent to deliver a controlled substance); 35 P.S. § 780-113(a)(16) (possession of a controlled substance); 35 P.S. § 780-113(a)(32) (possession of drug paraphernalia). Bueno, 2024 WL 510987, at *4, fn. 1. 2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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On appeal, Appellant raises three claims of error, which we quote

verbatim:

Claim One: The PCRA Court erred by not providing Mr. Bueno the opportunity to object to the dismissal of Bueno’s PCRA petition without a hearing pursuant to Rule 907 or the opportunity to file an amended PCRA petition pursuant to Rule 905. Where the court failed to serve Mr. Bueno with the 907 notice to dismiss. The docket statement depicts that the Rule 907 order was docketed, but the statement also depicts that the court failed to serve Mr. Bueno the Rule 907 notice, denying Bueno the opportunity to object and amend his PCRA petition. Thus, Bueno request that his case be remanded to the PCRA Court, granting him Nunc Pro Tunc statue to object to the dismissal of his PCRA petition and to move for leave to amend his PCRA petition.

Claim Two: PCRA Counsel was ineffective for failing to investigate trial counsel’s conflict of interest, by trial counsel representing Mr. Bueno and his co-defendant Ms. Rivera. Whereby denying Mr. Bueno his sixth amendment right to effective assistance of counsel at a critical stage.

Claim Three: PCRA Counsel was ineffective by failing to raise that trial counsel was ineffective for failing to challenge the affidavit of probable cause that was used to obtain the search warrant.

Appellant’s Brief at 1-2 (verbatim).

Upon review, we affirm the PCRA court’s order dismissing Appellant’s

PCRA petition, albeit on different grounds. See Commonwealth v. Truong,

36 A.3d 592, 593 n.2 (Pa. Super. 2012) (en banc) (an appellate “court may

affirm for any reason, including such reasons not considered by the lower

court”).

On appeal from the denial of PCRA relief, our standard of review calls

for us to determine whether the ruling of the PCRA court is supported by the

record and free of legal error. See Commonwealth v. Wharton, 263 A.3d

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561, 567 (Pa. 2021). However, as the timeliness of a PCRA petition is a

jurisdictional prerequisite, we address that issue first. See Commonwealth

v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019) (stating that “no court

has jurisdiction to hear an untimely PCRA petition” (citation omitted)).

“A PCRA petition, including a second or subsequent one, must be filed

within one year of the date the petitioner’s judgment of sentence became final,

unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S.

§ 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012)

(citation and footnote omitted). A judgment of sentence becomes final at the

conclusion of direct review, or at the expiration of time for seeking such

review. See id. at 17.

Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final if the petitioner pleads and proves one of

the following three statutory exceptions:

(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.

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42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions

must file a petition within one year of the date the claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to

allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations

omitted and some formatting altered). If a PCRA petition is untimely, and

none of the timeliness exceptions are met, courts do not have jurisdiction to

address the substance of the petitioner’s underlying claims. Commonwealth

v. Cox, 146 A.3d 221, 227 (Pa. 2016).

We reiterate that this Court affirmed Appellant’s judgment of sentence

on February 9, 2024. Bueno, 2024 WL 510987, at *4. Appellant did not file

a petition for allowance of appeal with our Supreme Court within the 30-day

period set forth in Pa.R.A.P. 1113(a). Accordingly, Appellant’s judgment of

sentence became final for PCRA purposes on Monday, March 11, 2024,3 when

the time for filing a timely petition for allowance of appeal in our Supreme

Court expired. See 42 Pa.C.S. § 9545(b)(3).

It appears that the PCRA court, appointed counsel, and the

Commonwealth all viewed the PCRA petition as timely because Appellant

sought untimely discretionary review with our Supreme Court. As noted, ____________________________________________

3 The last day to file a timely petition for allowance of appeal was Monday March 11, 2024, as the thirtieth day fell on a Sunday March 10, 2024. See 1 Pa.C.S. § 1908 (for computations of time, if the last day of any such period falls on a Saturday, Sunday, or any legal holiday, such day shall be omitted from the computation).

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Appellant filed a petition for leave to file a petition for allowance of appeal

nunc pro tunc on May 28, 2024, and our Supreme Court denied the petition

on November 19, 2024. Order, 11/19/24, 77 MM 2024 (single page).

Importantly, our Supreme Court denied Appellant nunc pro tunc status; it did

not deny a petition for allowance of appeal. See id. Appellant’s petition for

leave to file a petition for allowance of appeal nunc pro tunc that was denied

by our Supreme Court does not alter date on which his judgment of sentence

became final under the PCRA. An en banc panel of our Court explained:

[The appellant’s] judgment of sentence became final upon expiration of 30-day period to file petition for allowance of appeal to Supreme Court from Superior Court’s decision affirming judgment of sentence; [the] fact that [the] appellant filed [an] untimely petition for allowance of appeal nunc pro tunc with [our] Supreme Court after expiration of 30-day period, which [our] Supreme Court denied, does not alter date on which [the a]ppellant’s judgment of sentence became final for purposes of PCRA[.]

Commonwealth v. Postie, 200 A.3d 1015, 1020 (Pa. Super. 2018) (en banc)

(citing Commonwealth v. Hutchins, 760 A.2d 50, 54 (Pa. Super. 2000)).

Therefore, Appellant had until March 11, 2025, one year from the date that

his judgment of sentence became final, to file a timely PCRA petition. 42

Pa.C.S. § 9545(b).

We recognize that Appellant was incarcerated when he filed his pro se

PCRA petition that was docketed on March 24, 2025. The “prisoner mailbox

rule,” provides:

Date of filing for incarcerated persons. -- A pro se filing submitted by a person incarcerated in a correctional facility is deemed filed as of the date of the prison postmark or the date the

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filing was delivered to the prison authorities for purposes of mailing as documented by a properly executed prisoner cash slip or other reasonably verifiable evidence.

Pa.R.A.P. 121(f). To receive the benefit of the prisoner mailbox rule, the pro

se prisoner bears the burden to prove the date they delivered the document

to prison authorities for filing. See Commonwealth v. Jones, 700 A.2d 423,

426 (Pa. 1997). Here, the certificate of service attached to Appellant’s pro se

PCRA petition bears a handwritten date of March 19, 2025, next to Appellant’s

signature. There is no cash slip or other reasonably verifiable evidence that

Appellant’s PCRA petition was turned over to prison authorities prior to March

19, 2025. As such, the earliest verifiable date that Appellant can establish

that he turned over to prison authorities for filing his PCRA petition is March

19, 2025, which is eight days beyond the one-year period Appellant had to file

a timely petition. Therefore, Appellant’s PCRA petition was facially untimely,

and Appellant did not address, much less prove, any exception to the one-

year filing requirement under the PCRA.

In sum, we conclude that Appellant’s PCRA petition was facially untimely

and did not assert any exception to the PCRA time-bar. Accordingly, the

petition should not have been reviewed at all but rather summarily denied as

untimely. Commonwealth v. Giles, ___A.3d___, 2026 WL 1141807, at *5

(Pa. Super. 2026). “Because it was Appellant’s burden to plead and prove an

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exception to the PCRA time-bar, we may affirm the PCRA court’s denial of

PCRA relief on that basis.” Id. (citing Truong, 36 A.3d at n.2).4

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 06/23/2026

4 We recognize the merits in Appellant’s first claim that the PCRA court failed

to strictly comply with Pa.R.Crim.P. 907 when it dismissed Appellant’s petition. “While we do not condone the [PCRA] court’s error in this regard, we will not provide Appellant with relief on this issue as our independent review has determined that Appellant failed to invoke the jurisdiction of the [PCRA] court by failing to plead and prove the applicability of the timeliness exceptions contained in 42 Pa.C.S. § 9545(b)(1)(i)–(iii).” Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000).

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