J-S80045-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LUIS NESTOR MARTINEZ,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 2081 EDA 2017

Appeal from the PCRA Order May 31, 2017

in the Court of Common Pleas of Northampton County,

Criminal Division at No(s): CP-48-CR-0003442-2010

BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 27, 2018

Luis Nestor Martinez (“Martinez”), pro se, appeals from the Order 

dismissing his second Petition for relief filed pursuant to the Post Conviction 

Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In June 2011, Martinez pled guilty to a multitude of offenses (including 

robbery, kidnapping and aggravated assault), stemming from a home 

invasion wherein Martinez and his co-conspirator robbed, bound, and 

tortured the victims. This Court affirmed Martinez’s judgment of sentence. 

See Commonwealth v. Martinez, 60 A.3d 562 (Pa. Super. 2012) 

(unpublished memorandum). Martinez did not seek allowance of appeal. 

Martinez filed his first PCRA Petition in July 2013, which the PCRA 

court later denied. This Court affirmed, after which the Supreme Court of 

Pennsylvania denied allowance of appeal. See Commonwealth v. 
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Martinez, 120 A.3d 1056 (Pa. Super. 2015) (unpublished memorandum), 

appeal denied, 126 A.3d 1283 (Pa. 2015).

On February 23, 2017, Martinez filed the instant, pro se PCRA Petition, 

his second. The PCRA court later issued a thorough Pennsylvania Rule of 

Criminal Procedure 907 Notice of Intent to Dismiss the Petition without an 

evidentiary hearing (hereinafter “Rule 907 Notice”), stating that the court 

lacked jurisdiction to address the Petition because it was untimely filed. 

Martinez filed a pro se Response to the Rule 907 Notice. On May 31, 2017, 

the PCRA court dismissed the PCRA Petition, after which Martinez filed a 

timely Notice of Appeal.

1

 

Martinez now presents the following issues for our review: 

1. In light of the [Pennsylvania] Supreme Court’s explicit 

reiteration in Commonwealth v. Burton[, 158 A.3d 618 (Pa. 

2017),] that the untimeliness or serial nature of a PCRA 

Petition are not grounds for summary dismissal under 

Pa.R.Crim.P[.] 907, did the [PCRA] court’s dismissal of the 

underlying PCRA Petition, based on untimeliness grounds, and 

without conducting the required “miscarriage of justice” 

inquiry, and/or without ordering the Commonwealth to file an 

Answer and Motion to dismiss raising untimeliness as a 

rebuttable affirmative defense, constitute a denial of federal 

due process and equal protection under the law[,] and equal 

protection under the Burton[] rule and 42 Pa.C.S.A. 

[§] 9543(b), and has the Commonwealth forfeited and/or 

waived the affirmative defense of untimeliness on appeal by 

not asserting the defense below?

____________________________________________

1 The PCRA court did not order Martinez to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. However, Martinez filed a pro 

se Concise Statement contemporaneously with his Notice of Appeal.
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2. Do the 1995 procedural amendments to 42 Pa.C.S.A. 

[§] 9545(b)(1)-(4) ... violate the Tenth and Fourteenth 

Amendments of the U.S. Constitution[,] where they were 

implemented by the PA General Assembly for the purpose of 

opting in to the federal habeas corpus regulatory program of 

Title I of [the federal Antiterrorism and Effective Death 

Penalty Act of 1996], and has 42 Pa.C.S.A. [§] 9545(1)(iii), 

pursuant to [the] Supremacy Clause at Article VI, Clause 2 of 

the federal Constitution[,] been rendered of no further force 

or effect[,] in light of the U.S. Supreme Court’s 

announcement of the “function of the rule” test, restoring the 

retroactivity principles of Teague v. Lane[, 489 U.S. 288 

(1989),] back to its original equitable purpose?

3. Did [Martinez’s] after[-]discovered fact of being prosecuted 

under the mandates of VOI[/]TIS[2] satisfy the [Pennsylvania] 

Supreme Court’s holding in Burton[, supra,] and

[Commonwealth v.] Martinez[, 147 A.3d 517 (Pa. 2016)], 

and the [Pennsylvania Superior] Court’s holding in

[Commonwealth v.] Ritz[, 153 A.3d 336 (Pa. Super. 

2016),] and was it a violation of [Martinez’s] federal 

constitutional rights under Article I, Section 10, the Sixth, 

Tenth and Fourteenth Amendments [to the federal 

Constitution, and his Pennsylvania] Constitutional right under 

Article I, Section 17, where [Martinez] did not receive the 

benefit of his 2011 plea agreement because he was sentenced 

under the mandates of []TIS, and because his mandatory 

statutory/guideline minimum sentences were aggravated 

based on facts not charged in the Information or admitted by 

[Martinez,] in violation of the retroactive case of Alleyne v. 

U.S.[, 133 S. Ct. 2151 (2013)]? 

4. Where [Martinez] asserted, as a miscarriage of justice, that 

the Commonwealth deprived him of assistance of counsel 

during preliminary hearing proceedings under the pretense 

that the County did not receive [Martinez’s] request for 

____________________________________________

2 Martinez is referring to the federal Violent Offender Incarceration/Truth-inSentencing (or VOI/TIS – hereinafter “TIS”) incentive grant program enacted 

in 1994. The TIS program provides grants to states to be used to increase 

the capacity of state correctional systems to confine serious and violent 

offenders. See Commonwealth v. Baldwin, 760 A.2d 883, 886 (Pa. 

Super. 2000) (explaining TIS and its application in Pennsylvania).
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appointment of counsel, thereby for [Martinez] to either 

waive said hearing or proceed pro se, did the lower court err 

or abuse [its] discretion in failing to find a miscarriage of 

justice did occur, and or/by failing to freely allow amendment 

of the underlying PCRA Petition to achieve substantial justice 

to assert, as newly[-]discovered facts, records which show 

that Lehigh County officials did fax [Martinez’s] request for 

counsel for Northampton County officials, and did the court 

err or abuse [its] discretion in not permitting [Martinez] to 

raise, as newly[-]discovered facts, the legal implications of 

[Martinez] being subjected to an in-court identification at trial 

based on the victim solely recognizing [Martinez’s] voice 

during pro se representation and questioning of the victim 

during the preliminary hearing?

Brief for Appellant at 3-4 (footnote added, capitalization omitted). In the 

interest of brevity, we will address Martinez’s issues together.

When reviewing an order dismissing a PCRA petition, we examine 

whether the determination of the PCRA court is supported by the record and 

free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. 

Super. 2014). The merits of a PCRA petition cannot be addressed unless the 

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely 

filed. Id. 

Any PCRA petition must be filed within one year of the date the 

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). In the 

instant case, Martinez’s PCRA is facially untimely, as he filed it over three

years after September 2012, when his judgment of sentence became final. 

However, Pennsylvania courts may consider an untimely petition if the 

appellant can explicitly plead and prove one of three exceptions set forth 
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under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) (hereinafter “timeliness 

exception(s)”). Any PCRA petition invoking one of the timeliness exceptions 

“shall be filed within 60 days of the date the claim could have been 

presented.” Id. § 9545(b)(2); see also Albrecht, 994 A.2d at 1094. 

Preliminarily, Martinez argues that 42 Pa.C.S.A. § 9545(b) is 

unconstitutional, in its entirety, under the Supremacy Clause and the Tenth 

Amendment to the United States Constitution. See Brief for Appellant at 12-

18. However, Martinez has waived this issue by not raising it in his PCRA 

Petition or Response to the Rule 907 Notice. See Pa.R.A.P. 302(a) 

(providing that “[i]ssues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”); see also Commonwealth v. 

Washington, 927 A.2d 586, 601 (Pa. 2007) (stating that “[a]ny claim not 

raised in the PCRA petition is waived and not cognizable on appeal.”). 

Nevertheless, even if Martinez had raised this assertion before the PCRA 

court, he does not explain which of the timeliness exceptions his assertion

satisfies. Accordingly, we would not have jurisdiction to review the merits 

this argument, even if it were preserved for our review.

In his remaining issues, Martinez invokes the newly-discovered facts
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timeliness exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii).3 Regarding 

this timeliness exception, our Court has stated as follows:

The timeliness exception set forth in Section 9545(b)(1)(ii) 

requires a petitioner to demonstrate he did not know the facts 

upon which he based his petition and could not have learned 

those facts earlier by the exercise of due diligence. Due 

diligence demands that the petitioner take reasonable steps to 

protect his own interests. A petitioner must explain why he 

could not have learned the new fact(s) earlier with the exercise 

of due diligence. This rule is strictly enforced. Additionally, the 

focus of this exception is on the newly[-]discovered facts, not on 

a newly[-]discovered or newly willing source for previously 

known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations 

and quotation marks omitted). Moreover, petitioners must plead and prove

specific facts demonstrating their claim was raised within the sixty-day time

frame of section 9545(b)(1)(ii). See 42 Pa.C.S.A. § 9545(b)(2); see also

Commonwealth v. Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013).

From what we can discern from Martinez’s longwinded Argument 

section, he essentially raises three main claims under the newly-discovered 

facts timeliness exception, each of which invokes a judicial decision:

1. “In early February of 2017, another prisoner reviewed 

[Martinez’s] legal papers and informed [Martinez] that [the 

____________________________________________

3 Though the PCRA court, in its Rule 907 Notice, stated that Martinez 

invoked the newly-recognized constitutional right timeliness exception, at 42 

Pa.C.S.A. § 9545(b)(1)(iii), Martinez did not raise this exception in the 

Statement of Questions Presented section of his brief or in his Argument

section; thus, it is abandoned on appeal. See, e.g., Commonwealth v.

Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (stating that, where the 

appellant “fails to expand upon [a] claim in the argument section of his brief 

... the claim is waived.”).
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decisions in] Martinez[, supra] and Ritz[, supra,] have 

invalidated his guilty pleas because he was never informed of 

the requirements of []TIS[,] and that []TIS violates the Tenth 

Amendment[.]” Brief for Appellant at 18 (ellipses omitted).

2. “Pursuant to Burton[, supra], informed by the same prisoner 

who informed [Martinez] of the issues above, [Martinez] raised 

in the PCRA court the newly[-]discovered fact of the legal 

consequences of the Commonwealth depriving him of counsel 

during the critical phase of the preliminary hearing 

proceeding.” Brief for Appellant at 22.

3. “[I]t is a newly[-]discovered fact that [Martinez’s] mandatory 

statutory[] minimum guideline[] sentences are also 

unconstitutional under the Sixth and Fourteenth Amendments, 

and Alleyne[, supra].” Brief for Appellant at 22.

It is well settled that “subsequent decisional law does not amount to a 

new ‘fact’ under section 9545(b)(1)(ii)[.]” Commonwealth v. Watts, 23 

A.3d 980, 987 (Pa. 2011); see also Commonwealth v. Cintora, 69 A.3d 

759, 763 (Pa. Super. 2013) (rejecting “the notion that judicial decisions can 

be considered newly-discovered facts which would invoke the protections 

afforded by section 9545(b)(1)(ii)”). 

Moreover, even if three of the decisions upon which Martinez relies 

(see Martinez, supra; Ritz, supra; and Alleyne, supra) could be 

considered new “facts” under section 9545(b)(1)(ii), he still would not be

entitled to relief, as he did not satisfy the 60-day requirement set forth

in section 9545(b)(2). See Cintora, 69 A.3d at 763-74. As the Cintora

Court explained:

To fulfill the 60-day requirement, appellants[, who had invoked

the newly-discovered fact timeliness exception based upon a

new judicial decision,] needed to file their petitions within 60

days from the date of the court’s decision. [Commonwealth
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v.] Brandon, [51 A.3d 231, 235 (Pa. Super. 2012)] (finding

appellant’s claim, alleging recently filed judicial decision as

newly-discovered fact, failed for, inter alia, not complying with

section 9545(b)(2), as “the sixty-day period begins to run upon

the date of the underlying judicial decision[,]” not the date

appellant became aware of the decision).

Cintora, 69 A.3d at 763-74; see also id. at 764 (pointing out that the 

appellants failed to file their PCRA petitions within 60 days of the judicial 

decision upon which they relied, and, thus, “the petitions were untimely on 

this basis as well.”). In the instant case, Martinez filed his PCRA Petition on 

February 23, 2017, and none of the three above-mentioned cases he 

invokes (Martinez, supra; Ritz, supra; and Alleyne, supra) were decided 

within 60 days of this date. 

Finally, concerning Martinez’s invocation of Burton, supra,

4 which 

was decided shortly after he filed his PCRA Petition (and which he cited in his 

Response to the Rule 907 Notice), it is unavailing to Martinez for two 

reasons:

(1) Judicial decisions cannot constitute a new “fact”

under section 9545(b)(1)(ii). See Watts, supra.

 

(2) The purported newly-discovered “fact” that Martinez cites 

(i.e., “the Commonwealth depriving him of counsel during 

the critical phase of the preliminary hearing proceeding” 

Brief for Appellant at 22), is not “information of public 

record” as contemplated by Burton. See Burton, 158 A.3d

at 631 (emphasizing that “[t]o qualify for the exception 

____________________________________________

4 The Burton Court held that “the presumption that information which is of 

public record cannot be deemed ‘unknown’ for purposes of subsection 

9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” Burton, 158

A.3d at 638 (emphasis omitted).
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under subsection 9545(b)(1)(ii), a petitioner must allege 

and prove that []the facts upon which the claim is 

predicated were unknown to the petitioner....”) (emphasis in 

original; citation omitted).

Accordingly, because Martinez failed to properly plead or prove any

exception to the PCRA’s one-year time-bar, the PCRA court properly

dismissed the PCRA Petition without a hearing, as the court lacked

jurisdiction to address it. See Albrecht, supra. We likewise lack

jurisdiction to address the merits of Martinez’s claims, and thus affirm the

PCRA court’s Order dismissing Martinez’s second PCRA Petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2018