J-S30036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JOSE MIGUEL PEREZ, : : Appellant : No. 1627 MDA 2016
Appeal from the PCRA Order September 12, 2016 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0001497-1991; CP-36-CR-0001533-1991
BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 12, 2017
Jose Miguel Perez (“Perez”), pro se, appeals from the Order denying
his sixth Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
On July 9, 1992, in consolidated cases, a jury found Perez guilty of one
count of delivery of a controlled substance (cocaine), and three counts of
possession with intent to deliver a controlled substance (cocaine).2 See 35
Pa.C.S.A. § 780-113(a)(30). On June 4, 1993, the trial court sentenced
Perez to an aggregate prison term of 24-80 years. On May 2, 1994, this
Court affirmed Perez’s judgment of sentence. Commonwealth v. Perez,
1 See 42 Pa.C.S.A. §§ 9541-9546. 2 Perez had been charged with three counts of delivery of a controlled substance (cocaine) to a police informant. Executing a search warrant, police seized an additional ½ kilo (over 500 grams) of cocaine, $14,000 in cash from the kitchen table, and $10,000 in cash from Perez. J-S30036-17
647 A.2d 266 (Pa. Super. 1994) (unpublished memorandum). Perez did not
seek further review by the Pennsylvania Supreme Court. Over the years,
Perez filed five petitions for PCRA relief, all of which were unsuccessful. 3
On July 30, 2015, Perez filed the instant Petition for habeas corpus and
PCRA relief, claiming that he is being unlawfully confined based upon the
absence of the required reason(s) for his sentence on the sentencing
guidelines forms. In March 2016, Perez filed an Amended Petition, asserting
that his confinement is illegal because of alleged defects in the Criminal
Complaint and the arrest warrant affidavits. On September 12, 2016, after
appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court entered an
Order denying Perez’s Petition as untimely filed. Thereafter, Perez filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
On appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error. Commonwealth v. Breakiron, 781 A.2d 94, 97 n.4 (Pa.
2001).
We begin by addressing the timeliness of Perez’s Petition, because the
PCRA’s time limitations implicate the court’s jurisdiction, and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015).
3 Perez also unsuccessfully sought relief in federal court.
-2- J-S30036-17
A PCRA petition must be filed within one year of the date the
petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).
“This timeliness requirement is jurisdictional in nature, and a court may not
address the merits of any claim raised unless the petition was timely filed or
the petitioner proves that one of the three exceptions to the timeliness
requirement applies.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa.
2016). The three exceptions to the one-year filing requirement are for
newly-discovered facts, interference by a government official, and a newly-
recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition
asserting one of these exceptions must also establish that the exception was
raised within sixty days of the date the claim could have been first
presented. 42 Pa.C.S.A. § 9545(b)(2).
In this case, Perez’s judgment of sentence became final on June 1,
1994, 30 days after this Court affirmed Perez’s judgment of sentence. See
Pa.R.A.P. 113(a). Therefore, Perez’s current PCRA Petition, filed on July 31,
2015, is facially untimely. Perez asserts that newly-discovered facts render
his Petition timely filed. Brief for Appellant at 8; see also 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Specifically, Perez claims that he received the Guideline
Sentence Form on July 1, 2015, and only then discovered that the
sentencing court had failed to state its reasons for Perez’s sentence on the
record. Brief for Appellant at 8. According to Perez, this omission requires
-3- J-S30036-17
that the sentence be vacated, “regardless of the appropriateness of the
sentence.” Id. at 8-9.
As our Supreme Court has explained, to establish an exception
pursuant to subsection (b)(1)(ii), a petitioner must establish only that
(1) the facts upon which the claim was predicated were unknown and (2) they could not have been ascertained by the exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72 (Pa. 2007). We have unequivocally explained that “the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the underlying claim.” Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1268 (Pa. 2008). Rather, the exception only requires a petitioner to “prove that the facts were unknown to him and that he exercised due diligence in discovering those facts.” Bennett, 930 A.2d at 1270; see also [] Breakiron, … 781 A.2d [at] 98 [] (rejecting attempt to invoke section 9545(b)(1)(ii) because appellant failed to offer any evidence that he exercised due diligence in obtaining facts upon which his claim was based).
Commonwealth v. Cox, 146 A.3d 221, 227-28 (Pa. 2016).
Here, Perez failed to establish how this information was
unascertainable, with the exercise of due diligence, within one year of his
judgment of sentence becoming final. See Commonwealth v. Burton,
2017 Pa. LEXIS 664, *43 n.23 (Pa. March 28, 2017) (stating that “[a] pro se
incarcerated PCRA petitioner is still required to prove that the facts upon
which his claim of a timeliness exception under subsection 9545(b)(1)(ii) is
based were unknown to him and not ascertainable by the exercise of due
diligence.”). There is nothing of record establishing that this information
was unavailable to Perez during his direct appeal or throughout his last five
-4- J-S30036-17
PCRA proceedings. Accordingly, Perez has failed to establish an exception to
the PCRA’s timeliness requirement on this basis. See id.
Perez additionally claims that the “Criminal [C]omplaint[] and arrest
warrant affidavits filed herein rendered the trial court [] void of jurisdiction
ab initio for ‘want of probable cause,’” as the result of an unidentified
signature on those documents. Brief for Appellant at 10. Perez asserts that
the documents appeared to be issued by District Justice Earle Schmuckle,
“but he did not sign the jurat finding probable cause[,] but an unidentifiable
signature appears.” Id. Perez contends that he is entitled to habeas corpus
relief based upon these defects, and therefore, the PCRA’s time limit does
not apply. Id. at 13.
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J-S30036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JOSE MIGUEL PEREZ, : : Appellant : No. 1627 MDA 2016
Appeal from the PCRA Order September 12, 2016 in the Court of Common Pleas of Lancaster County, Criminal Division, No(s): CP-36-CR-0001497-1991; CP-36-CR-0001533-1991
BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JUNE 12, 2017
Jose Miguel Perez (“Perez”), pro se, appeals from the Order denying
his sixth Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
On July 9, 1992, in consolidated cases, a jury found Perez guilty of one
count of delivery of a controlled substance (cocaine), and three counts of
possession with intent to deliver a controlled substance (cocaine).2 See 35
Pa.C.S.A. § 780-113(a)(30). On June 4, 1993, the trial court sentenced
Perez to an aggregate prison term of 24-80 years. On May 2, 1994, this
Court affirmed Perez’s judgment of sentence. Commonwealth v. Perez,
1 See 42 Pa.C.S.A. §§ 9541-9546. 2 Perez had been charged with three counts of delivery of a controlled substance (cocaine) to a police informant. Executing a search warrant, police seized an additional ½ kilo (over 500 grams) of cocaine, $14,000 in cash from the kitchen table, and $10,000 in cash from Perez. J-S30036-17
647 A.2d 266 (Pa. Super. 1994) (unpublished memorandum). Perez did not
seek further review by the Pennsylvania Supreme Court. Over the years,
Perez filed five petitions for PCRA relief, all of which were unsuccessful. 3
On July 30, 2015, Perez filed the instant Petition for habeas corpus and
PCRA relief, claiming that he is being unlawfully confined based upon the
absence of the required reason(s) for his sentence on the sentencing
guidelines forms. In March 2016, Perez filed an Amended Petition, asserting
that his confinement is illegal because of alleged defects in the Criminal
Complaint and the arrest warrant affidavits. On September 12, 2016, after
appropriate Notice pursuant to Pa.R.Crim.P. 907, the PCRA court entered an
Order denying Perez’s Petition as untimely filed. Thereafter, Perez filed the
instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of matters complained of on appeal.
On appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error. Commonwealth v. Breakiron, 781 A.2d 94, 97 n.4 (Pa.
2001).
We begin by addressing the timeliness of Perez’s Petition, because the
PCRA’s time limitations implicate the court’s jurisdiction, and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Cristina, 114 A.3d 419, 421 (Pa. Super. 2015).
3 Perez also unsuccessfully sought relief in federal court.
-2- J-S30036-17
A PCRA petition must be filed within one year of the date the
petitioner’s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3).
“This timeliness requirement is jurisdictional in nature, and a court may not
address the merits of any claim raised unless the petition was timely filed or
the petitioner proves that one of the three exceptions to the timeliness
requirement applies.” Commonwealth v. Cox, 146 A.3d 221, 227 (Pa.
2016). The three exceptions to the one-year filing requirement are for
newly-discovered facts, interference by a government official, and a newly-
recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition
asserting one of these exceptions must also establish that the exception was
raised within sixty days of the date the claim could have been first
presented. 42 Pa.C.S.A. § 9545(b)(2).
In this case, Perez’s judgment of sentence became final on June 1,
1994, 30 days after this Court affirmed Perez’s judgment of sentence. See
Pa.R.A.P. 113(a). Therefore, Perez’s current PCRA Petition, filed on July 31,
2015, is facially untimely. Perez asserts that newly-discovered facts render
his Petition timely filed. Brief for Appellant at 8; see also 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Specifically, Perez claims that he received the Guideline
Sentence Form on July 1, 2015, and only then discovered that the
sentencing court had failed to state its reasons for Perez’s sentence on the
record. Brief for Appellant at 8. According to Perez, this omission requires
-3- J-S30036-17
that the sentence be vacated, “regardless of the appropriateness of the
sentence.” Id. at 8-9.
As our Supreme Court has explained, to establish an exception
pursuant to subsection (b)(1)(ii), a petitioner must establish only that
(1) the facts upon which the claim was predicated were unknown and (2) they could not have been ascertained by the exercise of due diligence. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264, 1270-72 (Pa. 2007). We have unequivocally explained that “the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the underlying claim.” Commonwealth v. Abu-Jamal, 596 Pa. 219, 941 A.2d 1263, 1268 (Pa. 2008). Rather, the exception only requires a petitioner to “prove that the facts were unknown to him and that he exercised due diligence in discovering those facts.” Bennett, 930 A.2d at 1270; see also [] Breakiron, … 781 A.2d [at] 98 [] (rejecting attempt to invoke section 9545(b)(1)(ii) because appellant failed to offer any evidence that he exercised due diligence in obtaining facts upon which his claim was based).
Commonwealth v. Cox, 146 A.3d 221, 227-28 (Pa. 2016).
Here, Perez failed to establish how this information was
unascertainable, with the exercise of due diligence, within one year of his
judgment of sentence becoming final. See Commonwealth v. Burton,
2017 Pa. LEXIS 664, *43 n.23 (Pa. March 28, 2017) (stating that “[a] pro se
incarcerated PCRA petitioner is still required to prove that the facts upon
which his claim of a timeliness exception under subsection 9545(b)(1)(ii) is
based were unknown to him and not ascertainable by the exercise of due
diligence.”). There is nothing of record establishing that this information
was unavailable to Perez during his direct appeal or throughout his last five
-4- J-S30036-17
PCRA proceedings. Accordingly, Perez has failed to establish an exception to
the PCRA’s timeliness requirement on this basis. See id.
Perez additionally claims that the “Criminal [C]omplaint[] and arrest
warrant affidavits filed herein rendered the trial court [] void of jurisdiction
ab initio for ‘want of probable cause,’” as the result of an unidentified
signature on those documents. Brief for Appellant at 10. Perez asserts that
the documents appeared to be issued by District Justice Earle Schmuckle,
“but he did not sign the jurat finding probable cause[,] but an unidentifiable
signature appears.” Id. Perez contends that he is entitled to habeas corpus
relief based upon these defects, and therefore, the PCRA’s time limit does
not apply. Id. at 13.
Under the Pennsylvania statute,
habeas corpus is a civil remedy which lies solely for commitments under criminal process. Habeas corpus is an extraordinary remedy and may only be invoked when other remedies in the ordinary course have been exhausted or are not available. If a petitioner is in custody by virtue of a judgment of sentence of a court of competent jurisdiction, the writ generally will not lie. Pennsylvania law explicitly states that in cases where a person has been restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy may be had by post[-]conviction hearing proceedings authorized by law. Issues are not cognizable under the statutory remedy of habeas corpus if they could have been considered and corrected in the regular course of appellate review or by post-conviction proceedings authorized by law.
Commonwealth v. DiVentura, 734 A.2d 397, 398 (Pa. Super. 1999)
(citation omitted) (emphasis added).
-5- J-S30036-17
Our Rules of Criminal Procedure provide that
[a] defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, citation, summons, or warrant, or a defect in the procedures of these rules, unless the defendant raises the defect before the conclusion of the trial in a summary case or before the conclusion of the preliminary hearing in a court case, and the defect is prejudicial to the rights of the defendant.
Pa.R.Crim.P. 109.
Perez did not challenge the alleged defects in the Criminal Complaint
and affidavits supporting his arrest warrant before the conclusion of the
preliminary hearing or trial and, therefore, the issue was waived. See
Commonwealth v. Manni, 302 A.2d 374, 377 (Pa. Super. 1973) (stating
that the failure to object to a defect in the complaint waives the issue). The
defects now alleged by Perez could have been addressed on direct appeal,
and counsel’s failure to object to the alleged defects could have been
considered and corrected through a timely filed PCRA petition. See 42
Pa.C.S.A. § 9543(a)(2)(ii) (providing eligibility for relief based upon
“ineffective assistance of counsel); see also id. § 9542 (stating that the
PCRA subsumes the remedy of habeas corpus). Accordingly, the remedy of
habeas corpus is not available to Perez. See DiVentura, 734 A.2d at 398.
Because Perez has established neither an exception to the PCRA’s
timeliness requirement, nor the right to habeas corpus relief, we affirm the
Order of the PCRA court.
-6- J-S30036-17
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/12/2017
-7-