J-S63041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ERASMO M. PIEDRA

 Appellant No. 2926 EDA 2015

Appeal from the PCRA Order September 15, 2015

in the Court of Common Pleas of Chester County Criminal Division

at No(s):

CP-15-CR-0001234-2007

CP-15-CR-0001882-2007

CP-15-CR-0001922-2007

CP-15-CR-0001966-2007

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,*J.

JUDGMENT ORDER BY FITZGERALD, J.: FILED SEPTEMBER 27, 2016

Pro se Appellant, Erasmo M. Piedra, appeals from the order dismissing 

his second Post Conviction Relief Act1(“PCRA”) petition as untimely. We 

affirm.

We adopt the facts and procedural history set forth in the PCRA court’s 

opinions. See Rule 1925 Second Supplemental Op., 10/22/15, at 1-2; Rule 

1925 Supplemental Op., 10/19/15, at 1-3; see also Order, 9/15/15, at 2 

n.1.; see generally Commonwealth v. Piedra, 595 EDA 2013 (Pa. Super. 

Dec. 4, 2013) (affirming denial of Appellant’s first PCRA petition); 

 

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
J-S63041-16

- 2 -

Commonwealth v. Piedra, 323 EDA 2009 (Pa. Super. Oct. 5, 2010) 

(affirming Appellant’s direct appeal). As noted by the PCRA court, 

Appellant’s second petition, docketed on May 15, 2015, raised only one 

issue: a challenge to the discretionary aspects of his sentence. Following a 

Pa.R.Crim.P. 907 notice, Appellant filed a pro se response raising one 

additional issue: a claim that his sentence was illegal under Alleyne v. 

United States, 133 S. Ct. 2151 (2013). The court formally dismissed 

Appellant’s petition on September 15, 2015. Appellant timely appealed and 

timely filed a court-ordered Pa.R.A.P. 1925(b) statement raising a host of 

additional issues that were not raised in his original petition or response to 

the Rule 907 notice.2 

Before addressing the merits of Appellant’s two preserved claims, we 

examine whether we have jurisdiction. See Commonwealth v. Fahy, 737 

A.2d 214, 223 (Pa. 1999). “Our standard of review of a PCRA court’s 

dismissal of a PCRA petition is limited to examining whether the PCRA 

court’s determination is supported by the evidence of record and free of 

legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 

2003) (en banc) (citation omitted). A PCRA petition “must normally be filed 

within one year of the date the judgment becomes final . . . unless one of 

the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 

 

2

It is well-settled those additional issues are waived because they were not 

first presented to the PCRA court. See Pa.R.A.P. 302.
J-S63041-16

- 3 -

60 days of the date the claim could have been presented.” Commonwealth 

v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (citations and footnote 

omitted).

After careful review of the record, the parties’ briefs, and the decision 

by the PCRA court, we affirm on the basis of the PCRA court’s reasoning. 

See PCRA Ct. Order, 9/15/15, at 2 n.1; Order, 7/9/15, at 2 n.1 (holding (1) 

Appellant failed to plead and prove any one of the three timeliness 

exceptions to the one-year time bar; (2) challenge to discretionary aspects 

of sentence is not cognizable under PCRA; and (3) Alleyne does not apply 

retroactively to Appellant’s case, as his judgment of sentence became final 

well before Alleyne was issued); see also Commonwealth v. 

Washington, ___ A.3d ___, ___, 2016 WL 3909088 at *8 (Pa. July 19, 

2016) (holding, “Alleyne does not apply retroactively to cases pending on 

collateral review”). Having discerned no abuse of discretion or error of law, 

we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/27/2016
Piedra, No. 595 EDA 2013. 

appeal by the Superior Court on December 4, 2013. Commonwealth v. 

dismissed following hearing, and our determination was affirmed on 

seeking collateral relief. His first PCRA petition, while timely, was 

907(1 ), Appellant had until March 30, 2012 to file a timely PCRA petition 

Dismiss his second PCRA Petition filed pursuant to Pa. R. Crim. P. 

on May 15, 2015. As discussed in the footnote to our Notice of Intent to 

untimely PCRA Petition. Appellant filed his second pro se PCRA petition 

We write briefly to address Appellant, Erasmo Piedra's second, 

RULE 1925 SUPPLEMENTAL OPINION 

Nagle, S.J. October 19, 2015 

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Nicholas J. Casenta, Chief Deputy District Attorney for the Commonweahli ,· , 

Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove . , 

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CRIMINAL ACTION , \·'_ 

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ERASMO M. PIEDRA 

Appellant 

NO. CP-15-CR-0001234-2007; 1882- 

2007; 1922-07; 1966-2007 

vs. 

IN THE COURT OF COMMON PLEAS 

CHESTER COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA 

Circulated 09/02/2016 01:22 PM
2 

We append our Notice to Dismiss Appellant's second PCRA 

petition to this Opinion for the Superior Court's convenience, in which we 

advised Appellant his second Petition was untimely, and that his claim as 

expressed in his second Petition was not cognizable under the PCRA. 

Appellant responded to our Notice on July 20, 2015, in which he raised 

the alleged illegality of his aggregate sentence based upon Alleyne v. 

United States, 133 S. Ct. 2151, 2155 (2013), and his presumed 

entitlement to relief thereunder. On September 15, 2015, we issued our 

footnoted Order dismissing his second PCRA, in which we addressed 

again the untimeliness of his second Petition and discussed the 

inapplicability of Alleyne to Appellant's collateral appeal. We append a 

copy of our Dismissal Order to the instant Opinion for the Superior 

Court's convenience. 

Appellant filed a timely pro se Notice of Appeal on September 28, 

2015. Because the grounds for the instant appeal are clearly expressed 

in Appellant's Response to our Notice of Intent to Dismiss his second 

Petition, and reasons for our doing so are detailed in our footnoted Order 

and Notice, we did not require Appellant to file a Concise Statement of 

Errors Complained of on Appeal. We note that Appellant is not entitled to 

the appointment of counsel in a second untimely PCRA petition that does 
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not require an evidentiary hearing. See Commonwealth v. Jackson, 965 

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there are no genuine issues concerning any material fact that require 

no jurisdiction to consider the Petition, and, further, if jurisdiction existed, 

a challenge to the discretionary aspects of sentencing, which is not 

cognizable under the Post Conviction Relief Act, this 'Court finds that it has 

requirement has been pled, and, further, that the claim asserted implicates 

the Court the Petition is not timely filed, and that no exception to the time 

Erasmo Piedra's 2nd PCRA petition, filed on May 15, 2015, it appearing to 

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NOTICE OF INTENT TO DISMISS PCRA PETITION 

PURSUANT TO Pa.R.Crim.P. 907(1) 

Nicholas J. Casenta, Chief Deputy District Attorney for the Commonwealth: g 

Erasmo Piedra, pro se :---- - 

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ERASMO PIEDRA 

Appellant 

AND NOW, this __ q_· -=-·J_H_, _ day of July. 2015. upon consideration of 

NO. CP-l5-CR-0001234-2007; 1882-2007; 

1922-07; 1966-2007 

CHESTER COUNTY, PENNSYLVANIA 

vs. 

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS 

S:\Admin\NAGLE\Piedra, Erasmo, 2nd PCRA, NOTICE OF INTENT TO DISMISS PCRA 

PETITION.Docx 
The Clerk of Courts of Chester County is ORDERED to serve a copy 

of this Notice of Intent to Dismiss Defendant's PCRA petition on 

the following: 

(a) The District Attorney of Chester County. 

determination in an evidentiary hearing. Accordingly, we conclude that the 

Defendant/Petitioner, Erasmo Piedra (the "Defendant") is not entitled to 

post-conviction collateral relief, and that no purpose would be served by 

any further proceedings. As required by Pa.R.Crim.P. 907(1 ), the Court 

having so determined, the Defendant is hereby given NOTICE of the 

Court's intent to dismiss the Defendant's 2nd PCRA petition. 

The Defendant may respond to this NOTICE in writing within twenty 

(20) days of the docketing of this Order. If the Defendant has not so 

responded, a subsequent Order will be entered by the Court dismissing the 

Defendant's PCRA petition. That subsequent Order shall be a final 

appealable Order disposing of the Defendant's PCRA petition. 

If the Defendant responds in writing to this NOTICE, the Court will 

either: dismiss Defendant's PCRA petition; if warranted, grant him leave to 

file an amended petition; or, if warranted, direct that further proceedings be 

held. 
Further, even were the petition timely, Defendant's petition challenges the discretionary 

aspects of his sentence, claiming his crimes, collectively considered, constituted his first 

drug offence, and that the sentence imposed was an abuse of the court's discretion. 

Challenges to discretionary aspects of sentence that do no implicate the legality of 

sentence are not cognizable under the PCRA, Commonwealth v. Wrecks, 934 A.2d 

1287 (Pa.Super.,2007) 

1 On May 23, 2008, Defendant was convicted by a jury of multiple counts of possession 

with intent to deliver a controlled substance and other drug-related charges. He 

appealed the-judgment of sentence to-Superior Court, which affirmed. The 

Pennsylvania Supreme Court denied allocator on March 30, 2011. Commonwealth v. 

Piedra, 15 A.3d 516 (Pa. Super., 2010, appeal denied, 610 Pa. 584, 19 A.3d 516 

(2011). Accordingly, Defendant had until March 30, 2012 to file a PCRA petition seeking 

collateral relief. On March 30, 2012 Defendant filed a timely PCRA petition, and an 

amended petition on May 24, 2012, which we denied following hearing. The Superior 

Court affirmed dismissal of the petition on December 4, 2013. No 595 EDA 2013. lf the 

PCRA petition is determined to be untimely, and no exception is pied and proven, the 

petition must be dismissed without hearing because Pennsylvania courts are without 

jurisdiction to consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d 

516 (Pa. Super., 2011), appeal denied, 47 A.3d 845 (Pa., 2012). Instantly, Defendant's 

petition does not aver an exception to the PCRA's time requirement. See 42 Pa.C.S.A. 

§9545. 

Ronald C. Nagle 

(b) Defendant, Erasmo Piedra, SCI Pine Grove, 191 Fyock Road, 

Indiana, PA 15701 by Certified Mail, Return Receipt Requested.1 
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(a) District Attorney of Chester County. 

copy of this Order upon the following: 

Pennsylvania, with the Clerk of Courts of Chester County. 

May 15, 2015 is hereby DISMISSED1. 

AND NOW, this 

ORDER OF COURT 

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Nicholas J, Casenta, Chief Deputy District Attorney for the Commonwealtp:::: 

Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove ·.:., c-'. 

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CRIMINAL ACTION -/~~ 

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ERASMO M. PIEDRA 

Appellant 

The Clerk of Courts of Chester County is ORDERED to serve a 

from the date of this Order to file an appeal to the Superior Court of 

disposing of his second PCRA petition, and that he has thirty (30) days 

-· - . --- --· 

The Petitioner/Defendant is advised that this is a final Order 

Petitioner/Defendant, Erasmo Piedra's second PCRA Petition, filed on 

1'h / 6 . day of September, 2015 the 

NO. CP-15-CR-0001234-2007;1882- 

2007; 1922-07; 1966-2007 

vs. 

IN THE COURT OF COMMON PLEAS 

CHESTER COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA 

. i 

S:\Admin\NAGLE\Pk .,.a, Erasmo, Order, 2nd PCRA, Response tc , .otlce of Intent to Dismiss.docx 
1 Petitioner, Erasmo Piedra responded on July 20, 2015 to this court's Notice 

of Intent to dismiss his second PCRA Petition. Petitioner's second petition advanced 

the claim that the aggregate sentence we imposed of 17 to 30 years imprisonment 

was an abuse of discretion and greater than the lawful maximum because his 

criminal conduct was comprised of a series of drug offenses originating out of a 

single criminal enterprise for which he was collectively tried, and should, therefore, 

have collectively "constituted his first drug offense". PCRA Petition, para. 5(A). We 

advised Petitioner that his second petition was untimely, and that his petition did not' 

aver an exception to the PCRA's one-year limitations period. 

In his Response to the court's Notice of Intent to Dismiss, Petitioner expressly 

raises a challenge to the legality of 18 Pa.C.S.A. §7508 under which he was 

sentenced, claims as a consequence he is serving an illegal sentence, seeks leave 

to amend his petition to permit a challenge to his sentence pursuant to Alleyne, infra, 

and invokes the applicability of the PCRA's 60-day time-bar statutory exception to the 

one-year jurisdictional time bar. 42 Pa.C.S.A. §9545(b)(2). A PCRA petition invoking 

one of the statutory exceptions must "be filed within 60 days of the date the claim 

could have been presented". Petitioner's Response does identify the Section 9545 

exception that is alleged to apply to his case or the factual basis supporting the 

exception. 42 Pa.C.S.A. §9545(b)(1)(i)-(iii). 

Ronald C. Nagle 

COURT: 

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(b) Defendant - by Certified Mail, Return Receipt Requested. 
Petitioner was sentenced under 18 Pa.C.S.A. § 7508(a)(iii), including 4 

separate mandatory minimum sentences imposed following his conviction by a jury 

arising from separate Informations charging PWID. Section 7508 has subsequently 

been held to be unconstitutional. See Commonwealth v. Cardwell, 105 A.3d 7 48 (Pa. 

Super., 2014). Petitioner now seeks PCRA relief on a claim premised upon the 

United States Supreme Court's decision in Alleyne v. United Stales, 133 S.Ct. 2151, 

2155 (2013) (holding that, to comply with dictates of the Sixth Amendment, facts that 

increase a mandatory minimum sentence are elements of the offense and must be 

submitted to the jury and proven beyond reasonable doubt), and several 

subsequently issued Pennsylvania appellate court decisions applying Alleyne. 

Petitioner did not raise an Alleyne claim in hoc verba in his second PCRA petition. 

Although illegal sentencing issues cannot be waived, they still must be presented in a 

timely PCRA petition. Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999). 

The filing mandates of the PCRA are jurisdictional in nature and are strictly 

construed. Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306, 309 (2008). The 

procedural Rules contemplate that amendments to pending PCRA petitions are to be 

"freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A). However, even 

were Petitioner permitted to amend his petition to plead an exception to the one-year 

time bar, Alleyne and its Pennsylvania progeny would not apply retroactively to 

Petitioner's case since it was not pending on direct appeal when Alleyne was issued. 

Commonwealth v. Newman, 99 A.3d 86(Pa. Super., 2014). On direct appeal, the 

Superior Court affirmed Petitioner's judgment of sentence on October 5, 2010, and 

the Pennsylvania Supreme Court denied allocator on March 30, 2011, well before the 

decision in Alleyne was issued. Commonwealth v. Piedra, 15 A.3d 516 (Pa. Super., 

2010), appeal denied, 610 Pa. 584, 19 A.3d 1050 (2011). 

The exception set forth in Section 9545(b((1)(iii), which presumably Petitioner 

is asserting, applies only where "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 for in this section and has been held by 

that court to apply retroactively" . Neither the United States Supreme Court nor our 
Supreme Court has held that Alleyne applies retroactively to cases on collateral 

review. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super., 2014). 

Therefore, we are without jurisdiction to entertain Petitioner's second PCRA petition 

because it is facially untimely to which no exception to the time -bar applies. 
constitutionality of the PCRA statute with respect to the 60-day exception 

raises for the first time additional claims, including those challenging the 

raised in his second PCRA petition, Appellant's concise statement now 

previously raised in this second PCRA petition. In addition to the issues 

statement issued by Appellant, in which he raises multiple issues not 

Statement of Matters Complained of on Appeal. I have reviewed the 

in chambers, via the Clerk of Courts' office, Appellant's Concise 

Opinion issued on October 19, 2015. On October 21, 2015, we received 

We write briefly to supplement our Rule 1925 Supplemental 

RULE 1925 SECOND SUPPLEMENTAL OPINION 

Nagle, S.J. October 19, 2015 

Nicholas J. Casenta, Chief Deputy District Attorney for the Commonwealth .. ) . ·, 

·, Erasmo M. Piedra, prose, HS-1040, SCI- Pine Grove en 

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CRIMINAL ACTION '> 

ERASMO M. PIEDRA 

Appellant 

NO. CP-15-CR-0001234-2007;:1882-. · 

2007; 1922-07; 1966-209/ . ': :\ 

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vs. 

IN THE COURT OF COMMON PLEAS 

COMMONWEALTH OF PENNSYLVANIA CHESTER COUNTY, PENNSYLVANIA 

S:\Admin\NAGLE\Appeals\PIEDRA Erasmo 2nd Supp 1925 opinion Sur 

2nd PCRA petition.docx 
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Pa.R.A.P. 302(a). 

second PCRA, or in his response to our Notice to Dismiss, I respectfully 

issues raised in the Concise Statement were not raised in Appellant's 

17 (Pa. 2012) (case citations and footnote omitted). Further, as the 

the individual claims asserted. Commonwealth v. Jones, 54 A.3d 14, 16- 

petition was not timely filed. This rule applies regardless of the nature of 

therefore, a court may not address the merits of the issues raised if the 

untimely filed. The PCRA's timeliness requirements are jurisdictional; 

Petitioner's second PCRA petition, and have concluded his petition is 

to do so. We have previously addressed the time limitations applicable to 

issues raised in the Concise Statement since we are without jurisdiction 

§9545(b)(1)(i)-(iii). We find it unnecessary to address those and the other 

impact on illiterate, non- English speaking petitioners. See 42 Pa. C.S.A. 

to the one-year filing requirement, and the statute's alleged disparate 

submit those Errors Complained of on Appeal are waived. See