Com. v. Pagan, X.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF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 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 Dec. 19, 2016) (unpublished memorandum).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 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 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 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.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 6/22/2021