Com. v. Mancebo, A.

• Court: Superior Court of Pennsylvania
• Decided: May 16, 2018
• Docket: 64 MDA 2018
• Status: Unpublished

Opinion

J-S20032-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ALBERTO ALFONSO MANCEBO : : Appellant : No. 64 MDA 2018

Appeal from the PCRA Order December 20, 2017 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003677-2010

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 16, 2018

Appellant, Alberto Alfonso Mancebo, appeals pro se from the order

entered in the Berks County Court of Common Pleas, which dismissed as

untimely his second petition for collateral relief (labeled a petition for writ of

habeas corpus), per the Post Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.

§§ 9541-9546. On February 1, 2011, a jury convicted Appellant of one count

each of delivery of a controlled substance and possession of a controlled

substance. The court sentenced Appellant on February 2, 2011, to 10 to 20

years’ incarceration. After a remand for counsel to file a Pa.R.A.P. 1925(b)

statement, this Court affirmed the judgment of sentence on December 22,

2011; our Supreme Court denied allowance of appeal on May 10, 2012. See

Commonwealth v. Mancebo, 40 A.3d 201 (Pa.Super. 2011), appeal denied,

615 Pa. 791, 44 A.3d 1161 (2012). Appellant sought no further review, so J-S20032-18

the judgment of sentence became final on August 8, 2012. Appellant filed his

first PCRA petition on May 19, 2014; the court appointed counsel, who filed a

no-merit letter per Turner/Finley1 and a motion to withdraw as counsel. On

October 31, 2014, the court issued notice of its intent to dismiss, per

Pa.R.Crim.P. 907, and granted counsel’s motion to withdraw. After Appellant

filed a response to the Rule 907 notice on November 21, 2014, the court

dismissed the petition as untimely on December 9, 2014. This Court dismissed

Appellant’s appeal on May 1, 2015, for failure to file a brief.

On April 15, 2016, Appellant filed the current pro se petition (labeled a

petition for writ of habeas corpus), which the court properly treated as a

second PCRA petition, because it raised issues cognizable under the PCRA.

See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for same

purpose). On November 20, 2017, the PCRA court issued Rule 907 notice of

its intent to dismiss; Appellant responded on December 8, 2017. On

December 20, 2017, the court dismissed the petition as untimely filed, with

issues previously litigated. Appellant timely filed a notice of appeal on January

5, 2018, and a court-ordered concise statement of errors complained of on

appeal, per Pa.R.A.P. 1925(b), on January 25, 2018.

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1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

must be filed within one year of the date the underlying judgment became

final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is “final” at the conclusion of

direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §

9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very

limited circumstances to excuse the late filing of a petition; a petitioner

asserting an exception must file a petition within 60 days of the date the claim

could first have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, the judgment of sentence became final on August 8, 2012,

upon expiration of the time to file a petition for writ of certiorari in the United

States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current

PCRA petition on April 15, 2016, which is patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1). In the petition, Appellant assumes “arguendo” that he should

have filed a PCRA petition, but that no exceptions apply, and a PCRA petition

would be untimely in any event, which is why he styled his current petition as

one for habeas corpus relief. In it, Appellant raises claims of cruel and unusual

punishment along with complaints of ineffective assistance of prior counsel.

Appellant also posits the PCRA, to the extent it supplants or subsumes the

remedy of habeas corpus, is an unconstitutional infringement on the state

right to that relief. The court dismissed the petition as untimely under the

PCRA. The court further noted (1) Appellant’s claims of ineffective assistance

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of his prior counsel and his alleged language difficulties were raised in his prior

PCRA petition; and (2) Appellant’s court-ordered Rule 1925(b) statement was

void for vagueness, so his claims are waived for appeal. We conclude, the

court properly dismissed Appellant’s current petition as untimely. Accordingly,

we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/16/18

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