Com. v. Suarez, R.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2016
• Docket: 1943 MDA 2015
• Status: Unpublished

Opinion

J-S43009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

REYNALDO ADOLFO SUAREZ

Appellant No. 1943 MDA 2015

Appeal from the PCRA Order October 16, 2015 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0004549-2009

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 23, 2016

Appellant, Reynaldo Adolfo Suarez, appeals from the order entered in

the Berks County Court of Common Pleas, which denied his second petition

filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. On April 22, 2010, a jury convicted Appellant of various drug and

firearm offenses. The court sentenced Appellant on June 18, 2010, to an

aggregate term of 6-15 years’ imprisonment. Appellant’s sentence included

mandatory minimums per 18 Pa.C.S.A. § 7508, based on the weight of the

drugs seized, and 42 Pa.C.S.A. § 9712.1, based on the close proximity

between the firearms and the drugs. This Court affirmed on December 2,

2011, and Appellant did not seek further review with our Supreme Court.

See Commonwealth v. Suarez, 40 A.3d 182 (Pa.Super. 2011).

On November 30, 2012, Appellant timely filed his first PCRA petition J-S43009-16

with the aid of counsel. On December 4, 2012, Appellant filed a pro se PCRA

petition and asked to proceed pro se. The court allowed Appellant to

proceed pro se and held a PCRA hearing on April 3, 2013. The court denied

relief on October 21, 2013. On appeal, this Court vacated and remanded the

case due to the PCRA court’s failure to conduct a Grazier colloquy before it

permitted Appellant to proceed pro se. See Commonwealth v. Suarez,

105 A.3d 803 (Pa.Super. 2014). On October 9, 2014, the PCRA court held a

Grazier hearing and granted Appellant’s request to proceed pro se. The

PCRA court again denied relief on April 28, 2015. This Court affirmed on

June 30, 2015, and Appellant did not seek further review with our Supreme

Court. See Commonwealth v. Suarez, 122 A.3d 1149 (Pa.Super. 2015).

On July 9, 2015, Appellant filed the current pro se PCRA petition. The PCRA

court issued Rule 907 notice on July 29, 2015. Appellant filed a response;

however, the court dismissed Appellant’s petition as untimely on October 16,

2015. On November 2, 2015, Appellant timely filed a pro se notice of

appeal. The PCRA court ordered Appellant to file a Rule 1925(b) statement,

and Appellant timely complied.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

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

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

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the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

A petitioner asserting a timeliness exception must file a petition within sixty

days of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(2). When asserting the newly created constitutional right exception

under Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’

constitutional right and that the right ‘has been held’ by that court to apply

retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.

2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).

Instantly, Appellant’s judgment of sentence became final on or about

January 1, 2012. Appellant filed his current petition on July 9, 2015, more

than three years later; thus, the petition is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke Section

9545(b)(1)(iii), contending his sentence is unconstitutional pursuant to the

United States Supreme Court’s decision in Alleyne v. United States, ___

U.S. ___, 133 S.Ct. 2151, 186 L.Ed 314 (2013) (decided 6/17/13) (holding

any fact increasing mandatory minimum sentence for crime is considered

element of crime to be submitted to fact-finder and found beyond

reasonable doubt). Alleyne, however, does not qualify as a timeliness

exception under Section 9545(b)(1)(iii). Commonwealth v. Miller, 102

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A.3d 988 (Pa.Super. 2014). Additionally, even if Alleyne applied

retroactively, Appellant failed to file his current petition within sixty days of

the Alleyne decision or seek to amend his pending first PCRA petition to

request relief per Alleyne. See 42 Pa.C.S.A. § 9545(b)(2). Accordingly,

the PCRA court properly denied Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2016

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