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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S26021-18
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.
-2- J-S26021-18
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?
-3- J-S26021-18
[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.
-4- J-S26021-18
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.
Free access — add to your briefcase to read the full text and ask questions with AI
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. J-S26021-18
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.
-2- J-S26021-18
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?
-3- J-S26021-18
[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.
-4- J-S26021-18
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.
-5- J-S26021-18
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).
-6- J-S26021-18
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/4/18
-7-