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

v.
PAUL SERRANO, III

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1080 EDA 2017 Appeal from the Judgment of Sentence February 21, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP

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- 0001487

- 2007

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J. MEMORANDUM BY PANELLA, J. FILED NOVEMBER 01, 2017 Appellant, Paul Serrano, appeals from the judgment of sentence entered after his second plea of guilty to first degree murder. His first guilty plea was withdrawn after a PCRA court determined that it had been unkno wingly entered. After careful review, we conclude that the PCRA court lacked jurisdiction to void Serrano’s first guilty plea, and therefore quash

. Our disposition of this appeal requires a detailed recitation of the procedural history of this case. In 20 07, t he Commonwealth charged Serrano with the murder of Kevin Muzila. At the time he was arrested and charged, Serrano was 18 years old; at the time he murdered Muzila, he was 17. The Commonwealth mistakenly charged Serrano as an adult, and gave notice of its intent to seek the death penalty.J

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However, in 2005 the Supreme Court of the United States had declared that sentencing a juvenile offender to death violated the Constitution’s prohibition on cruel and unusual punishments. See Roper v. Simmons , 543 U.S . 551 (2005). Serrano unknowingly agreed to plead guilty to first

- degree murder and waive his right to file a direct appeal in exchange for the Commonwealth’s promise to waive its right to pursue the

now - illegal death sentence. As a result, he received the only other possible sentence under existing Pennsylvania law, life without the possibility of parole. In 2009, Serrano filed a pro se Post Conviction Relief Act (“PCRA”) petition, asserting that his guilty plea counsel were ineffective for failing to inf orm him that he was not eligible for the death penalty under Roper

. He further requested the appointment of counsel to assist him. The PCRA court swiftly dismissed the petition as untimely under Pa.R.Crim.P. 901(A) without appointing counsel or holding a h earing. Pursuant to 42 Pa.C.S.A § 9545(b)(1), a PCRA petition must be filed within one year from the day the petitioner’s judgment became final. Serrano did not file a direct appeal from his judgment of sentence, so it became final on Thursday, September 13, 2007, 30 d ays after its entry. See Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Thus, Serrano would have been required to file his first petition on or beforeJ

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Monday, September 15, 2008. He did not file his first petition until April 16, 2009. However, exception s to the timeliness requirement exist. See Pa.C.S.A. § 9545(b)(1)(i)

- (iii). Serrano was entitled to have counsel appointed to assist him in the prosecution of his first PCRA petition to determine if any of these exceptions applied

. See Commonwealth v. Smith , 818 A.2d 494, 499 (Pa. 2003). As noted, the PCRA court dismissed Serrano’s petition as untimely without providing him counsel. In 2016, Serrano filed a counseled, second PCRA petition asserting that his sentence of lif e without possibility of parole was illegal pursuant to Miller v. Alabama , 567 U.S. 460 (2012) (ruling imposition of mandatory life without parole sentences on juvenile offenders is unconstitutional), and Montgomery v. Louisiana , 136 S.Ct. 718 (2016) ( find ing the rule announced in Miller to be applied retroactively on collateral review )

. This petition did not address the jurisd ictional timeliness requirement of the PCRA. After an off

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- record discussion, the PCRA court appointed new counsel to represent S errano, approved the hiring of a private investigator, and permitted the filing of an amended petition. In the amended petition, Serrano asserted that his guilty plea should be voided, as he was unaware that he was ineligible for the death penalty. He also reiterated that his sentence was unconstitutional pursuant to Miller and Montgomery

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amended petition also does not address the jurisd ictional timeliness requirement of the PCRA. The Commonwealth conceded that Serrano’s guilty plea was unknowing and agreed to allow him to withdraw it. See Trial Court Order, 11/4/16. The Commonwealth initially offered a new plea agreement whereby Serrano would receive a thirty year to life sentence if he pled guilty immediat ely. See N.T., PCRA Hearing, 11/2/16, at 6

- 7. Serrano rejected the agreement, and was granted a new trial. See id ., at 12. Furthermore, new counsel 1 was appointed to represent Serrano at trial. See id

. Serrano filed an omnibus pretrial motion seeking a cha nge in venue, discovery, and a clarification of sentencing options. Regarding sentencing options, Serrano argued that he could not be sentenced under 18 Pa.C.S.A. § 1102.1, as it would constitute an impermissible ex post facto increase in his penalty. The trial court denied these motions, and scheduled the case for trial. See Trial Court Order, 2/17/17. On February 21, 2017, Serrano entered into a negotiated guilty plea to first degree murder. In exchange, he received a sentence of 35 years to life. This ap peal followed. On appeal, Serrano contends that a sentence of 20 to 40 years in prison is the maximum sentence he can receive. However, we do not reach

_________________ __________ ______ ____ _______ 1 Counsel who filed the amended 2016 petition informed the court that he could not proceed in the matter, as he would suffer from a clear conflict of interest.J

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this issue, as we conclude that the PCRA court did not have jurisdiction to void Serrano’s initial guilt y plea. We may raise issues concerning our jurisdiction over an appeal sua sponte

. See Roman v. McGuire Mem oria l , 127 A.3d 26, 31 (Pa. Super. 2015), appeal denied , 134 A.3d 57 (Pa. 2016). “PCRA timeliness requirements are jurisdictional in nature and, ac cordingly, a court cannot hear untimely PCRA petitions.” Commonwealth v. Flanagan , 854 A.2d 489, 509 (Pa. 2004) (citations omitted). As noted, Serrano’s first PCRA petition, filed April 16, 2009, was untimely and did not allege any exceptions to the PCRA’ s time bar. Thus, Serrano’s 2016 initial petition and the amendment are also facially untimely. Neither of the 2016 petitions assert any exception to the PCRA’s time bar. While there is a conspicuous absence in the record of reasons for why the Commonwealt h conceded to, and the PCRA court granted, Serrano’s desire to withdraw his guilty plea, we can understand the impetus behind these decisions. Clearly, guilty plea counsel were ineffective for failing to advise Serrano that he was ineligible for the death penalty at the time he pled guilty. Furthermore, it is clear there was a breakdown in the operations of the court when the PCRA court failed to afford Serrano his Rule

- based right to counsel for his first petition. However, it is also clear that the PCRA court lacked jurisdiction, at this juncture, to entertain any of these three petitions. If a PCRA petition isJ

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facially untimely, the petitioner must plead and prove the applicability of one of three timeliness except ions in order to invoke the jurisdiction of the PCRA. See Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). Here, none of Serrano’s petitions pled, let alone prove d , the applicability of a timeliness exception. “Where a court is without jurisd iction it is without power to act and thus, any order that it issues is null and void.” Commonwealth v. Morris , 771 A.2d 721, 735 (Pa. 2001) (citations omitted). The PCRA court’s order withdrawing Serrano’s guilty plea was a nullity. The ensuing proceeding s are therefore a nullity, as Serrano’s initial judgment of sentence is still effective. Thus, Serrano’s appeal from a non

- existent judgment of sentence is also a nullity. See Commonwealth v. Spencer , 496 A.2d 1156, 1160 (Pa. Super. 1985). We are constrain ed to quash this appeal. We note that, as a consequence, Serrano’s amended second PCRA petition is still pending. We do not address whether it may be further amended to plead appropriate timeliness exceptions. That is for Serrano’s counsel to develop, a nd the PCRA court to decide. Appeal quashed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/1/2017