J-S22044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                        Appellee          :
                                          :
              v.                          :
                                          :
 ADRIAN VENTURA ENCARNACION               :
                                          :
                    Appellant             :      No. 2823 EDA 2017


                Appeal from the PCRA Order August 15, 2017
               in the Court of Common Pleas of Lehigh County
             Criminal Division at Nos.: CP-39-CR-0003900-2013
                           CP-39-CR-0003912-2013
                           CP-39-CR-0003914-2013


BEFORE:    BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                           FILED AUGUST 21, 2018

      Appellant, Adrian Ventura Encarnacion, appeals pro se, from the order

of August 15, 2017, dismissing his petition for a writ of habeas corpus. After

review, we conclude that the court correctly treated Appellant’s petition for a

writ of habeas corpus as an untimely serial petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Accordingly, we

affirm.

      We take the underlying facts and procedural history in this matter from

the PCRA court’s September 27, 2017 opinion and our independent review of

the certified record.

      On February 18, 2014, Appellant entered a counseled negotiated guilty

plea to nine robberies and related offenses. That same day, in accordance
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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with the terms of the plea agreement, the trial court sentenced Appellant to a

term of incarceration of not less than six nor more than twelve years.

Appellant did not file a direct appeal.

      On May 8, 2015, Appellant filed a pro se PCRA petition. The PCRA court

appointed counsel. On October 14, 2015, the PCRA court denied the petition.

Appellant did not appeal.

      Appellant filed the instant, pro se petition, captioned as a “Petition for

Habeas Corpus Relief Pursuant to Article I, § 14 of the Pennsylvania

Constitution” on July 5, 2017. Treating it as a PCRA petition, on August 1,

2017, the court issued notice of its intent to dismiss the petition pursuant to

Pennsylvania Rule of Criminal Procedure 907(1). Appellant subsequently filed

a response and supplemental petition. On August 15, 2017, the PCRA court

dismissed the petition as time-barred.      Appellant filed a timely notice of

appeal. On August 31, 2017, the court ordered Appellant to file a concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On

September 13, 2017, Appellant filed a timely Rule 1925(b) statement. The

court issued an opinion on September 27, 2017. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review.

      A. Whether the [PCRA] court abused its discretion in dismissing
         Appellant’s [p]etition for [w]rit of [h]abeas [c]orpus where the
         plea entered and sentence imposed were obtained without
         adequate notice of the charges in the [c]riminal [i]nformation
         amended on the same day of his plea and sentence?

      B. Whether the [PCRA] court abused its discretion in dismissing
         Appellant’s [s]upplemental [a]mended [h]abeas petition since

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         Appellant is confined pursuant to a [s]entencing [o]rder absent
         the statute under Pennsylvania law that the [j]udge received
         [s]tatutory [a]uthorization from to impose the sentence?

(Appellant’s Brief, at 3).

      Appellant appeals from the denial of his untimely PCRA petition.

Initially, we conclude that the PCRA court was correct to treat Appellant’s

petition for a writ of habeas corpus as a second PCRA petition. “[I]t is well

established that pursuant to Pennsylvania law, the PCRA subsumes the writ of

habeas corpus unless the claim does not fall within the ambit of the PCRA

statute.” Commonwealth v. Burkett, 5 A.3d 1260, 1274 (Pa. Super. 2010)

(citations omitted).    Here, Appellant’s claims that the criminal information

was defective, resulting in a violation of his due process rights, and that the

statute the trial court sentenced him under is unconstitutional, are clearly

within the ambit of the PCRA. See 42 Pa.C.S.A. §§ 9543(a)(2)(i) and (vii).

Thus, we conclude that the court did not err in treating Appellant’s filing as a

second PCRA petition.

      Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is supported
      by the evidence of record and is free of legal error. Great
      deference is granted to the findings of the PCRA court, and these
      findings will not be disturbed unless they have no support in the
      certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a




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trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

         Here, Appellant filed his PCRA petition on July 5, 2017.         The PCRA

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).        Appellant’s judgment of

sentence became final on March 20, 2014, thirty days after the trial court

imposed sentence and Appellant did not file a direct appeal with this Court.

See id. at (b)(3); Pa.R.A.P. 903(a).

         Therefore, Appellant had one year, until March 20, 2015, to file a timely

PCRA petition. Because Appellant did not file this petition until July 5, 2017,

the petition is facially untimely. Thus, to obtain PCRA relief, he must plead

and prove that his claim falls under one of the statutory exceptions to the one-

year time bar provided at section 9545(b). See 42 Pa.C.S.A. § 9545(b)(1)(i)-

(iii).

         Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

                (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




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             (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.

Id.   Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within [sixty] days of the date the claim could have

been presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has

repeatedly stated that it is an appellant’s burden to plead and prove that one

of the above-enumerated exceptions applies. See, e.g., Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916

(2008).

      Here, Appellant does not argue any of the above-listed exceptions. (See

Appellant’s Brief, at 8-12).   Since Appellant’s petition is untimely with no

statutory exception to the time-bar pleaded and proven, the PCRA court

properly found it was without jurisdiction to address the merits of Appellant’s

claims.

      Accordingly, because Appellant failed to plead and prove that his petition

falls within one of the enumerated exceptions to the PCRA time-bar, it is

untimely. We are without jurisdiction to consider the merits of his claims on

appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




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