J-S17009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JESUS GUILLERIMO RIVERA
Appellant No. 1310 MDA 2020
Appeal from the PCRA Order entered September 22, 2020 In the Court of Common Pleas of Berks County Criminal Division at No: CP-06-CR-0002176-2013
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 06, 2021
Appellant, Jesus Guillerimo Rivera1, appeals pro se from the September
22, 2020 order entered in the Court of Common Pleas of Berks County,
denying as untimely his second petition for collateral relief pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following
review, we affirm.
The PCRA court provided the following procedural history.
On February 17, 2015, [Appellant] entered an open guilty plea to one count each of criminal conspiracy to commit murder of the third degree, aggravated assault, riot, and simple assault before the Honorable (now President Judge) Thomas G. Parisi.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The record reflects different spellings of Appellant’s middle name. For purposes of this appeal, we have elected to use the spelling found on, among other documents, his notice of appeal. J-S17009-21
[Appellant] was sentenced the same day to an aggregate term of incarceration of seventeen to forty years in a state correctional facility, followed by five years of probation.
[Appellant], through plea counsel, filed post-sentence motions on February 26, 2015, seeking to withdraw [Appellant’s] guilty plea and modification of his sentence. The court denied [Appellant’s] post-sentence motions on April 1, 2015. [Appellant] filed a notice of appeal on April 23, 2015. The Superior Court affirmed [Appellant’s] judgment of sentence in a memorandum opinion dated February 1, 2016.
[Appellant] filed his first pro se petition pursuant to the PCRA on March 15, 2017. The PCRA court appointed [PCRA counsel] on March 21, 2017. On September 8, 2017, PCRA counsel filed a “No-Merit” Turner-Finley letter and a petition to withdraw as counsel. In her letter, PCRA counsel summarized [Appellant’s arguments of ineffectiveness for failing to investigate his case, failing to provide discovery, failing to explain the guilty plea, and forcing Appellant—who was not well-educated and spoke little English—to enter an unknowing plea]. PCRA counsel’s review of the record found that that petition was untimely. Specifically, the Superior Court affirmed the judgment of sentence on February 1, 2016 and [Appellant] had thirty days from that date within which to seek allocatur with the Pennsylvania Supreme Court. [Appellant] did not seek allocatur and therefore, his sentence became final on March 2, 2016. Because, as PCRA Counsel observed, [Appellant] filed his petition on March 15, 2017, the petition was untimely. Moreover, [Appellant] did not assert any of the statutory exceptions to the filing time requirements pursuant to 42 Pa.C.S.A. § 9545(b)(1).
Rule 907 Notice of Intention to Dismiss, 8/28/20, at 1-2 (footnotes and some
capitalization omitted).
The PCRA court explained that it performed an independent review of
the record, filed its Rule 907 notice of intent to dismiss Appellant’s initial
petition, and granted counsel’s request to withdraw. Appellant did not file a
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response to the Rule and the court dismissed the petition on March 1, 2018.
Id. at 2-3.
Appellant filed a timely notice of appeal to this Court and both he and
the PCRA court complied Pa.R.A.P. 1925. However, we dismissed the appeal
on September 26, 2018 for failure to file a brief. Appellant did not seek further
review. Id. at 3.
Appellant filed the instant petition, his second, which was dated May 27,
2020 but not docketed until June 24, 2020. In his petition, Appellant sought
nunc pro tunc reinstatement of his appeal rights and appointment of counsel.
He argued that his first petition, filed on March 15, 2017, was timely and that
he was entitled to review of its merits. He claimed he had until May 2, 2017
to file that first petition and, therefore, the PCRA court erred by dismissing it
as untimely. Id.
On August 28, 2020, the PCRA court issued a Rule 907 notice of intent
to dismiss. Appellant did not file a response within 20 days and the court
dismissed the petition by order of September 22, 2020. However, on
September 30, the court received a response to the Rule 907 notice dated
September 9, 2020. Despite the entry of the September 22, 2020 order, the
court reviewed Appellant’s response and determined Appellant failed to assert
any basis for relief or any error upon which the court might amend its
September 22, 2020 ruling. Therefore, the court issued an order on October
5, 2020, dismissing the petition for the reasons set forth in the August 28,
-3- J-S17009-21
2020 Rule 907 notice. In essence, the court denied reconsideration of its
earlier order. However, in the interim, Appellant filed a notice of appeal from
that September 22, 2020 order. On his docketing statement, Appellant
indicates he is appealing the October 5, 2020 order. While it appears no
separate notice of appeal was filed, it is clear Appellant clearly filed a timely
appeal from a final order entered September 22, 2020. Therefore, we consider
Appellant’s appeal as an appeal from September 22, 2020 order.
Appellant identifies five issues in his brief filed with this Court. 2 Two of
those five are based on PCRA counsel’s statement in her No-Merit letter that
the PCRA court lacked jurisdiction of Appellant’s untimely-filed PCRA petition.
Appellant’s Brief at 4, Issues I and III. Because this Court’s jurisdiction over
the merits of Appellant’s issues is contingent upon the timeliness of the
petition, we first consider whether we have jurisdiction to consider his issues.
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment [of sentence] becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). 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.A.
§ 9545(b)(3). “If a PCRA petition is untimely, neither this Court nor the trial
2 We note that the PCRA court did not order the filing of a Rule 1925(b) statement.
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court has jurisdiction over the petition. Without jurisdiction, we simply do not
have the legal authority to address the substantive claims.”
Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa. 2020) (citation and
alteration omitted).
As reflected above, Appellant entered a guilty plea on February 17,
2015, and was sentenced the same day. This Court affirmed his judgment of
sentence on February 1, 2016. Appellant did not seek allowance of appeal to
our Supreme Court. Therefore, his judgment of sentence was final 30 days
later, on March 2, 2016, and he had until March 2, 2017, to file a PCRA
petition.
The instant petition, dated May 27, 2020, was docketed on June 24,
2020. The petition is untimely on its face. Appellant did not plead or prove
any exception to the PCRA’s timeliness requirements. Therefore, neither the
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J-S17009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JESUS GUILLERIMO RIVERA
Appellant No. 1310 MDA 2020
Appeal from the PCRA Order entered September 22, 2020 In the Court of Common Pleas of Berks County Criminal Division at No: CP-06-CR-0002176-2013
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 06, 2021
Appellant, Jesus Guillerimo Rivera1, appeals pro se from the September
22, 2020 order entered in the Court of Common Pleas of Berks County,
denying as untimely his second petition for collateral relief pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following
review, we affirm.
The PCRA court provided the following procedural history.
On February 17, 2015, [Appellant] entered an open guilty plea to one count each of criminal conspiracy to commit murder of the third degree, aggravated assault, riot, and simple assault before the Honorable (now President Judge) Thomas G. Parisi.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 The record reflects different spellings of Appellant’s middle name. For purposes of this appeal, we have elected to use the spelling found on, among other documents, his notice of appeal. J-S17009-21
[Appellant] was sentenced the same day to an aggregate term of incarceration of seventeen to forty years in a state correctional facility, followed by five years of probation.
[Appellant], through plea counsel, filed post-sentence motions on February 26, 2015, seeking to withdraw [Appellant’s] guilty plea and modification of his sentence. The court denied [Appellant’s] post-sentence motions on April 1, 2015. [Appellant] filed a notice of appeal on April 23, 2015. The Superior Court affirmed [Appellant’s] judgment of sentence in a memorandum opinion dated February 1, 2016.
[Appellant] filed his first pro se petition pursuant to the PCRA on March 15, 2017. The PCRA court appointed [PCRA counsel] on March 21, 2017. On September 8, 2017, PCRA counsel filed a “No-Merit” Turner-Finley letter and a petition to withdraw as counsel. In her letter, PCRA counsel summarized [Appellant’s arguments of ineffectiveness for failing to investigate his case, failing to provide discovery, failing to explain the guilty plea, and forcing Appellant—who was not well-educated and spoke little English—to enter an unknowing plea]. PCRA counsel’s review of the record found that that petition was untimely. Specifically, the Superior Court affirmed the judgment of sentence on February 1, 2016 and [Appellant] had thirty days from that date within which to seek allocatur with the Pennsylvania Supreme Court. [Appellant] did not seek allocatur and therefore, his sentence became final on March 2, 2016. Because, as PCRA Counsel observed, [Appellant] filed his petition on March 15, 2017, the petition was untimely. Moreover, [Appellant] did not assert any of the statutory exceptions to the filing time requirements pursuant to 42 Pa.C.S.A. § 9545(b)(1).
Rule 907 Notice of Intention to Dismiss, 8/28/20, at 1-2 (footnotes and some
capitalization omitted).
The PCRA court explained that it performed an independent review of
the record, filed its Rule 907 notice of intent to dismiss Appellant’s initial
petition, and granted counsel’s request to withdraw. Appellant did not file a
-2- J-S17009-21
response to the Rule and the court dismissed the petition on March 1, 2018.
Id. at 2-3.
Appellant filed a timely notice of appeal to this Court and both he and
the PCRA court complied Pa.R.A.P. 1925. However, we dismissed the appeal
on September 26, 2018 for failure to file a brief. Appellant did not seek further
review. Id. at 3.
Appellant filed the instant petition, his second, which was dated May 27,
2020 but not docketed until June 24, 2020. In his petition, Appellant sought
nunc pro tunc reinstatement of his appeal rights and appointment of counsel.
He argued that his first petition, filed on March 15, 2017, was timely and that
he was entitled to review of its merits. He claimed he had until May 2, 2017
to file that first petition and, therefore, the PCRA court erred by dismissing it
as untimely. Id.
On August 28, 2020, the PCRA court issued a Rule 907 notice of intent
to dismiss. Appellant did not file a response within 20 days and the court
dismissed the petition by order of September 22, 2020. However, on
September 30, the court received a response to the Rule 907 notice dated
September 9, 2020. Despite the entry of the September 22, 2020 order, the
court reviewed Appellant’s response and determined Appellant failed to assert
any basis for relief or any error upon which the court might amend its
September 22, 2020 ruling. Therefore, the court issued an order on October
5, 2020, dismissing the petition for the reasons set forth in the August 28,
-3- J-S17009-21
2020 Rule 907 notice. In essence, the court denied reconsideration of its
earlier order. However, in the interim, Appellant filed a notice of appeal from
that September 22, 2020 order. On his docketing statement, Appellant
indicates he is appealing the October 5, 2020 order. While it appears no
separate notice of appeal was filed, it is clear Appellant clearly filed a timely
appeal from a final order entered September 22, 2020. Therefore, we consider
Appellant’s appeal as an appeal from September 22, 2020 order.
Appellant identifies five issues in his brief filed with this Court. 2 Two of
those five are based on PCRA counsel’s statement in her No-Merit letter that
the PCRA court lacked jurisdiction of Appellant’s untimely-filed PCRA petition.
Appellant’s Brief at 4, Issues I and III. Because this Court’s jurisdiction over
the merits of Appellant’s issues is contingent upon the timeliness of the
petition, we first consider whether we have jurisdiction to consider his issues.
Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment [of sentence] becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). 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.A.
§ 9545(b)(3). “If a PCRA petition is untimely, neither this Court nor the trial
2 We note that the PCRA court did not order the filing of a Rule 1925(b) statement.
-4- J-S17009-21
court has jurisdiction over the petition. Without jurisdiction, we simply do not
have the legal authority to address the substantive claims.”
Commonwealth v. Reid, 235 A.3d 1124, 1143 (Pa. 2020) (citation and
alteration omitted).
As reflected above, Appellant entered a guilty plea on February 17,
2015, and was sentenced the same day. This Court affirmed his judgment of
sentence on February 1, 2016. Appellant did not seek allowance of appeal to
our Supreme Court. Therefore, his judgment of sentence was final 30 days
later, on March 2, 2016, and he had until March 2, 2017, to file a PCRA
petition.
The instant petition, dated May 27, 2020, was docketed on June 24,
2020. The petition is untimely on its face. Appellant did not plead or prove
any exception to the PCRA’s timeliness requirements. Therefore, neither the
PCRA court nor this Court “has legal authority to address the substantive
claims.” Reid, 235 A.3d at 1143.
Although we have no jurisdiction over the substantive claims, we write
further to explain to Appellant why the PCRA court properly determined it
lacked jurisdiction over the substantive issues raised in his first PCRA petition.
In Appellant’s first petition, filed on March 15, 2017, Appellant did not
assert any exception to the PCRA’s time limitations. Consequently, appointed
counsel acknowledged, and the PCRA court agreed, that the petition was
untimely. Therefore, the PCRA court granted counsel’s petition to withdraw
-5- J-S17009-21
and, ultimately, dismissed the petition as untimely. An appeal from that
determination was dismissed for Appellant’s failure to file a brief.
In his appeal from dismissal of his second PCRA petition, which was
facially untimely, Appellant contends the issues raised in his first petition
should be reviewed because, he believes, the first petition was timely filed.
He asserts that petition was improperly dismissed because PCRA counsel did
not correctly calculate the time for filing a timely petition. He contends
counsel erroneously failed to include a 90-day period provided by 42 Pa.C.S.A
§ 9545(b) for seeking discretionary review before judgment would become
final. While Appellant recognizes that a PCRA petition is to be filed within one
year of the date the judgment becomes final, in accordance with Section
9545(b)(1), Appellant misconstrues or misunderstands when a judgment
becomes final. As set forth in Section 9545(b)(3), “a judgment 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.A.
§ 9545(b)(3) (emphasis added).
Again, Appellant’s judgment of sentence was affirmed by this Court on
February 1, 2016. In accordance with Pennsylvania Rule of Appellate
Procedure 1113(a), if Appellant wanted the Pennsylvania Supreme Court to
review this Court’s affirmance, he had thirty days from February 1, 2016 to
file a petition for allowance of appeal. Pa.R.A.P. 1113(a). He did not do so.
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Consequently, his judgment was final on March 2, 2016, at the expiration of
that thirty-day time for seeking review, triggering the one-year period for
filing a petition in accordance with 42 Pa.C.S.A. § 9545(b)(3).
Appellant mistakenly asserts his judgment of sentence was not final until
90 days after this Court affirmed his judgment of sentence. Had Appellant
petitioned our Supreme Court for allowance of appeal, and had that petition
been denied, he would have had 90 days to seek discretionary review under
United States Supreme Court Rule 13.3 However, he did not seek
discretionary review with the Pennsylvania Supreme Court. There is simply
no 90-day period at play in this case because Appellant did not pursue review
beyond this Court’s February 1, 2016 affirmance of his judgment of sentence.
PCRA counsel did not miscalculate the deadline for filing a timely first petition.
That March 2, 2017 deadline was not hers to calculate, rather it was a deadline
determined by the provisions of Section 9545(b).
Appellant’s second PCRA petition was untimely filed and was not saved
from the PCRA’s time bar by any exception its timeliness requirements.
3 Rule 13 provides, in relevant part, that “a petition for a writ of certiorari to
review a judgment in any case, civil or criminal, entered by a state court of last resort . . . is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review. U.S.Sup.Ct.R. 13.1.
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Therefore, we have no jurisdiction to consider the merits, if any, of Appellant’s
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 08/06/2021
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