Opinion
J-S14026-19 No. 1540 EDA 2018
04-05-2019
COMMONWEALTH OF PENNSYLVANIA v. JESUS GARCIA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0220721-1991 BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI, J. MEMORANDUM BY NICHOLS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Jesus Garcia appeals pro se from the order dismissing his second Post Conviction Relief Act (PCRA) petition as untimely. Appellant argues that the PCRA court erred in dismissing his petition without a hearing and asserts that he established all three time-bar exceptions contained in 42 Pa.C.S. 9545(b)(1)(i)-(iii). He further claims that he was entitled to appointed counsel for an evidentiary hearing. We affirm.
We adopt the PCRA court's facts and procedural history. See PCRA Ct. Op., 7/13/18, at 1-6.
Although Appellant filed the instant pro se petition in 2010 and numerous pro se materials thereafter, there is no explanation in the record for the nearly seven-year delay between Appellant's initial filing and the assignment of this matter to the PCRA court.
On appeal, Appellant claims that the PCRA court erred in dismissing his petition as untimely. Appellant's Brief at 4. Specifically, he argues that he properly raised exceptions to the PCRA time bar by alleging the previously unknown facts, governmental interference, and newly-recognized constitutional rights exceptions under Section 9545(b)(1)(i)-(iii). Id. He also claims that his due process rights were violated because he raised questions of disputed facts, but the PCRA court failed to appoint counsel or hold an evidentiary hearing on his claims. Id.
Following our careful review of the record, the parties' briefs, and the well-reasoned opinion of the PCRA court, we affirm on the basis of the PCRA court's decision that Appellant filed a facially untimely PCRA petition and failed to plead and prove the applicability of any exception to the PCRA time-bar. See PCRA Ct. Op., 7/13/18, at 1-6. Additionally, because Appellant failed to raise any genuine issues of fact regarding an applicable statutory exception, the PCRA court properly dismissed Appellant's petition without a hearing and without appointing counsel. See Pa.R.Crim.P. 904(D), 907(1); see also Commonwealth v. Hart , 199 A.3d 475, 482 (Pa. Super. 2018) (stating that an evidentiary hearing is required where a petitioner presents genuine issues of material fact).
In support of his petition, Appellant attached three witness statements alleging that Appellant was intoxicated on the night of the crime. The PCRA court found that two of the statements, and the claims derived therefrom, were submitted beyond the sixty-day window mandated by section 9545(b)(2). Therefore, the PCRA court dismissed Appellant's claims on that basis. On October 24, 2018, the General Assembly amended section 9545(b)(2), and extended the time for filing a petition from sixty days to one year from the date the claim could have been presented. See 2018 Pa. Legis. Serv. Act 2018-146 (S.B. 915), effective December 24, 2018. However, the amendment applies only to claims arising one year before the effective date of this section, December 24, 2017, or thereafter. Accordingly, because Appellant's claims were raised in 2010, the amendment does not apply.
In his brief, Appellant argues that he is entitled to relief under Miller v. Alabama , 567 U.S. 460 (2012), which prohibited the issuance of mandatory life sentences without parole for juvenile offenders. Although Appellant was over eighteen at the time of the instant offense, he relies on this Court's en banc review of Commonwealth v. Lee , ___ A.3d ___, 2019 PA Super 64, at *9 (Pa. Super. 2019) (en banc), which was pending at the time Appellant filed his brief. However, we recently issued our decision in Lee , which confirmed that "age is the sole factor in determining whether Miller applies to overcome the PCRA time-bar," and that "[u]ntil the United States Supreme Court or the Pennsylvania Supreme Court recognizes a new constitutional right in a non-juvenile offender, we are bound by precedent" on the issue. Lee , ___ A.3d ___, 2019 PA Super 64, at *9.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/5/19
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