J-S17033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : XAVIER JASON PAGAN : : Appellant : No. 199 MDA 2021
Appeal from the PCRA Order Entered December 30, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004619-2012
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 22, 2021
Xavier Jason Pagan (Pagan) appeals from the December 30, 2020 order
of the Court of Common Pleas of Berks County (PCRA court) dismissing his
second petition filed pursuant to the Post-Conviction Relief Act1 (PCRA) as
untimely. We affirm.
Only a brief procedural history is necessary to our disposition. On
January 28, 2013, Pagan entered an open guilty plea to two counts each of
aggravated assault and criminal conspiracy to commit aggravated assault and
one count each of simple assault, criminal conspiracy to commit criminal
homicide, criminal conspiracy to commit simple assault and intimidation of a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq. J-S17033-21
witness.2 He was sentenced to an aggregate term of 13 to 40 years of
incarceration with a consecutive period of 20 years of probation. He did not
pursue a direct appeal but filed a timely first PCRA petition in August 2013.
The PCRA court dismissed the petition and this Court affirmed on December
19, 2016. Commonwealth v. Pagan, 505 MDA 2016, at *1 (Pa. Super. Dec.
19, 2016) (unpublished memorandum).
Pagan filed the instant pro se PCRA petition on June 5, 2020, alleging
ineffective assistance of counsel at his guilty plea and sentencing hearing and
claiming that he was serving an illegal sentence. See Motion for Post
Conviction Collateral Relief, 6/5/20, at 2, 8. He pled that his petition met the
exception to the PCRA’s jurisdictional time-bar for a newly-recognized
constitutional right, citing Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. U.S., 570 U.S. 99 (2013). Id. at 3.
On August 6, 2020, the PCRA court issued a notice of intent to dismiss
the petition without a hearing concluding that the petition was untimely.
Pagan did not file a response and the PCRA court dismissed the petition on
December 30, 2020. Pagan timely appealed.3 The PCRA court did not order
2 18 Pa.C.S. §§ 2702(a)(1) & (4), 903(a)(1), 2701(a)(1) & 902(a).
3 Pagan’s pro se notice of appeal was not docketed until February 5, 2021,
which was seven days after the deadline for filing a notice of appeal expired on January 29, 2021. This Court issued a rule to show cause why the appeal should not be quashed as untimely. Rule to Show Cause, 3/12/21. Pagan filed a response averring that he had given his notice of appeal to prison (Footnote Continued Next Page)
-2- J-S17033-21
him to file a concise statement pursuant to Pa. R.A.P. 1925(b) but it issued a
statement in lieu of opinion pursuant to Pa. R.A.P. 1925(a).
Before considering the merits of the PCRA petition, we must first
determine whether the petition is timely in accordance with the PCRA’s
jurisdictional time-bar.4 “A PCRA petition, including a second and subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final.” Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa.
Super. 2018) (citation omitted); see also 42 Pa.C.S. 9545(b)(1). [A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
authorities for mailing on January 28, 2021, and that it should be considered timely filed pursuant to the prisoner mailbox rule. See Response to Rule to Show Cause, 3/19/21. The prisoner mailbox rule deems a pro se prisoner’s legal filings as filed on the date they are delivered to prison authorities for mailing. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011); Pa.R.A.P. 121(a). In its statement in lieu of opinion, the PCRA court found credible the certificate of service that Pagan included with his notice of appeal, which was dated January 28, 2021. Statement in Lieu of Opinion, 2/16/21, at unnumbered 1-2; see also Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (“Whether [an] appellant actually deposited the notice in the prison mail system by [the deadline] is a factual question.”). Thus, it concluded that the appeal was timely filed pursuant to the prisoner mailbox rule. Id. We defer to the PCRA court’s factual finding that the notice of appeal was timely delivered to prison authorities for mailing and conclude that we have jurisdiction over Pagan’s appeal.
4 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
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Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements of
the PCRA are jurisdictional, no court may consider the merits of an untimely
petition. Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020).
Pagan’s sentence became final in 2013 after he declined to file a direct
appeal from his judgment of sentence. 42 Pa.C.S. § 9545(b)(3). Because he
did not file the instant petition until June 5, 2020, his petition is facially
untimely and he must plead and prove one of the exceptions to the PCRA s
timeliness requirements.
There are three exceptions to the PCRA’s jurisdictional time-bar:
(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).
While Pagan pled in his pro se petition that his claim was timely pursuant
to a newly-recognized constitutional right, he has not advanced any argument
in his brief on appeal related to the timeliness of his petition. Rather, he
focuses entirely on the merits of his claims. Accordingly, he has waived any
-4- J-S17033-21
argument related to the jurisdictional time-bar. See Pa.R.A.P. 2119(a);
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”).
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J-S17033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : XAVIER JASON PAGAN : : Appellant : No. 199 MDA 2021
Appeal from the PCRA Order Entered December 30, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004619-2012
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 22, 2021
Xavier Jason Pagan (Pagan) appeals from the December 30, 2020 order
of the Court of Common Pleas of Berks County (PCRA court) dismissing his
second petition filed pursuant to the Post-Conviction Relief Act1 (PCRA) as
untimely. We affirm.
Only a brief procedural history is necessary to our disposition. On
January 28, 2013, Pagan entered an open guilty plea to two counts each of
aggravated assault and criminal conspiracy to commit aggravated assault and
one count each of simple assault, criminal conspiracy to commit criminal
homicide, criminal conspiracy to commit simple assault and intimidation of a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541 et seq. J-S17033-21
witness.2 He was sentenced to an aggregate term of 13 to 40 years of
incarceration with a consecutive period of 20 years of probation. He did not
pursue a direct appeal but filed a timely first PCRA petition in August 2013.
The PCRA court dismissed the petition and this Court affirmed on December
19, 2016. Commonwealth v. Pagan, 505 MDA 2016, at *1 (Pa. Super. Dec.
19, 2016) (unpublished memorandum).
Pagan filed the instant pro se PCRA petition on June 5, 2020, alleging
ineffective assistance of counsel at his guilty plea and sentencing hearing and
claiming that he was serving an illegal sentence. See Motion for Post
Conviction Collateral Relief, 6/5/20, at 2, 8. He pled that his petition met the
exception to the PCRA’s jurisdictional time-bar for a newly-recognized
constitutional right, citing Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Alleyne v. U.S., 570 U.S. 99 (2013). Id. at 3.
On August 6, 2020, the PCRA court issued a notice of intent to dismiss
the petition without a hearing concluding that the petition was untimely.
Pagan did not file a response and the PCRA court dismissed the petition on
December 30, 2020. Pagan timely appealed.3 The PCRA court did not order
2 18 Pa.C.S. §§ 2702(a)(1) & (4), 903(a)(1), 2701(a)(1) & 902(a).
3 Pagan’s pro se notice of appeal was not docketed until February 5, 2021,
which was seven days after the deadline for filing a notice of appeal expired on January 29, 2021. This Court issued a rule to show cause why the appeal should not be quashed as untimely. Rule to Show Cause, 3/12/21. Pagan filed a response averring that he had given his notice of appeal to prison (Footnote Continued Next Page)
-2- J-S17033-21
him to file a concise statement pursuant to Pa. R.A.P. 1925(b) but it issued a
statement in lieu of opinion pursuant to Pa. R.A.P. 1925(a).
Before considering the merits of the PCRA petition, we must first
determine whether the petition is timely in accordance with the PCRA’s
jurisdictional time-bar.4 “A PCRA petition, including a second and subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final.” Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa.
Super. 2018) (citation omitted); see also 42 Pa.C.S. 9545(b)(1). [A]
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
authorities for mailing on January 28, 2021, and that it should be considered timely filed pursuant to the prisoner mailbox rule. See Response to Rule to Show Cause, 3/19/21. The prisoner mailbox rule deems a pro se prisoner’s legal filings as filed on the date they are delivered to prison authorities for mailing. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011); Pa.R.A.P. 121(a). In its statement in lieu of opinion, the PCRA court found credible the certificate of service that Pagan included with his notice of appeal, which was dated January 28, 2021. Statement in Lieu of Opinion, 2/16/21, at unnumbered 1-2; see also Commonwealth v. Cooper, 710 A.2d 76, 79 (Pa. Super. 1998) (“Whether [an] appellant actually deposited the notice in the prison mail system by [the deadline] is a factual question.”). Thus, it concluded that the appeal was timely filed pursuant to the prisoner mailbox rule. Id. We defer to the PCRA court’s factual finding that the notice of appeal was timely delivered to prison authorities for mailing and conclude that we have jurisdiction over Pagan’s appeal.
4 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
-3- J-S17033-21
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). Because the timeliness requirements of
the PCRA are jurisdictional, no court may consider the merits of an untimely
petition. Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020).
Pagan’s sentence became final in 2013 after he declined to file a direct
appeal from his judgment of sentence. 42 Pa.C.S. § 9545(b)(3). Because he
did not file the instant petition until June 5, 2020, his petition is facially
untimely and he must plead and prove one of the exceptions to the PCRA s
timeliness requirements.
There are three exceptions to the PCRA’s jurisdictional time-bar:
(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).
While Pagan pled in his pro se petition that his claim was timely pursuant
to a newly-recognized constitutional right, he has not advanced any argument
in his brief on appeal related to the timeliness of his petition. Rather, he
focuses entirely on the merits of his claims. Accordingly, he has waived any
-4- J-S17033-21
argument related to the jurisdictional time-bar. See Pa.R.A.P. 2119(a);
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”).
Even if Pagan had preserved his timeliness argument related to
Apprendi and Alleyne, he would not be entitled to relief. First, he was
required to present his claim within 60 days after the United States Supreme
Court issued those decisions based on the prior version of Section 9545(b)(2)
of the PCRA.5 42 Pa.C.S. § 9545(b)(2). As Apprendi and Alleyne were
decided in 2000 and 2013, respectively, his petition filed in June 2020 is well
outside the 60-day time frame for raising this claim. Second, neither the
United States Supreme Court nor the Pennsylvania Supreme Court have held
that Apprendi and Alleyne apply retroactively, as is required to prove the
exception to the time-bar. 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.
Washington, 142 A.3d 810, 818-19 (Pa. 2016); Commonwealth v. Miller,
102 A.3d 988, 995 (Pa. Super. 2014). Because Pagan has not established an
exception to the time-bar, we lack jurisdiction to consider his claims.
5 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition
invoking a time-bar exception must be filed within one year of the date the claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective Dec. 24, 2018. The amendment applies only to claims arising on or after December 24, 2017.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/2021
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