Com. v. Torres, A. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALBERTO LEE TORRES, : No. 408 MDA 2017
:
Appellant :
Appeal from the PCRA Order, February 9, 2017,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0001954-2011
BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2017
Alberto Lee Torres appeals pro se from the February 9, 2017 order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
The charges in this case stem from events
following a bar fight on January 9, 2011.
Specifically, after getting into an altercation with a
patron inside a bar, [appellant] exited the bar and
fired a gun at that patron. No one was injured
during the incident.
As a result, [appellant] was charged with
Aggravated Assault [Count 1], Simple Assault
1
The Commonwealth indicated on May 30, 2017, that it will not be filing a
brief in this matter and will rely on the rationale set forth in the PCRA court’s
April 28, 2017 opinion.
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[Count 2], Recklessly Endangering Another Person
[Count 3], Prohibited Possession of a Firearm
[Count 4], and Prohibited Offensive Weapons
[Count 5].[2] On December 4, 2012, a jury
convicted [appellant] of Counts 1, 2, 3, and 5. On
January 2, 2013, a jury convicted [appellant] of
Count 4. On March 27, 2013, [appellant] was
sentence[d] to a total of 78 to 156 months[’]
incarceration at Counts 1, 2, 3, and 5. [Appellant]
was also sentenced to 60 to 120 months at Count 4,
which was ordered to run consecutively to the
sentence at Count 1. Overall, [appellant] was
sentenced to an aggregate term of 138 to
276 months at all five Counts.
[Appellant] filed a Post-Sentence Motion on
April 8, 2013. Th[e trial c]ourt denied [appellant’s]
Post-Sentence Motion on June 14, 2013. [Appellant]
filed a Notice of Appeal on July 17, 2013. On
March 21, 2014, the Superior Court affirmed
[appellant’s] judgment of sentence. [See
Commonwealth v. Torres, 100 A.3d 315(Pa.Super. 2014) (unpublished memorandum),
appeal denied, 97 A.3d 744 (Pa. 2014).] On
August 20, 2014, the Pennsylvania Supreme Court
denied [appellant’s] Petition for Allowance of Appeal.
[Id.] [Appellant] did not file a Petition for a Writ of
Certiorari from the United States Supreme Court.
[Appellant] filed his [f]irst [PCRA petition] on
November 21, 2014. Th[e PCRA c]ourt appointed
Cayla E. Amsley, Esq. to represent [appellant] in his
First PCRA proceedings. A hearing was held on
May 27, 2015. On August 20, 2015, th[e PCRA
c]ourt issued an Order and Opinion dismissing
[appellant’s] First PCRA. [Appellant] filed a Notice of
Appeal of this denial on September 15, 2015. The
Superior Court affirmed th[e PCRA c]ourt’s denial of
[appellant’s] First PCRA on May 4, 2016. [See
Commonwealth v. Torres, 151 A.3d 1135(Pa.Super. 2016) (unpublished memorandum),
appeal denied, 158 A.3d 76 (Pa. 2016).] On
2
18 Pa.C.S.A. §§ 2702, 2701, 2705, 6105, and 908, respectively.
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September 27, 2016, the Pennsylvania Supreme
Court denied [appellant’s] Petition for Allowance of
Appeal. [Id.]
[Appellant] filed his [s]econd [PCRA petition]
on November 7, 2016, raising a claim of ineffective
assistance of First PCRA Counsel and Trial Counsel,
Drew Deyo, Esq. On December 9, 2016, th[e PCRA
c]ourt issued a Notice of Intent to Dismiss
[appellant’s] Second PCRA [pursuant to
Pa.R.Crim.P. 907(1)] due to untimeliness and lack of
jurisdiction to address the merits. [Appellant] filed a
Rule 907(1) Response on December 27, 2016.
PCRA court opinion, 4/28/17, at 1-3 (footnotes consolidated; internal case
citations added).
On February 9, 2017, the PCRA court dismissed appellant’s instant
petition without a hearing. Appellant filed a pro se notice of appeal on
March 3, 2017. That same day, the PCRA court ordered appellant to file a
concise statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On March 22, 2017, appellant filed a timely Rule 1925(b)
statement and the PCRA court issued its Rule 1925(a) opinion on April 28,
2017.
Appellant raises the following issues for our review:
1. DID THE PCRA COURT ABUSE ITS DISCRETION
BY DISMISSING APPELLANT’S SECOND PCRA
PETITION AS UNTIMELY WHERE HE
SUFFICIENTLY PLED AN EXCEPTION TO THE
STATUTORY TIMELINESS REQUIREMENT[?]
2. SHOULD THIS COURT REVERSE THE PCRA
COURT’S ORDER DENYING THE SECOND PCRA
PETITION WITHOUT A HEARING, WHERE
APPELLANT RAISES A GENUINE ISSUE OF
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MATERIAL FACT AS TO WHETHER HE PLED
[THAT] HE ACTED DILIGENTLY[?]
3. DID THE PCRA COURT ERR IN NOT
RESTORING APPELLANT’S PCRA RIGHTS
WHERE OBVIOUS OMISSIONS BY COUNSEL
RESULTED IN THE DENIAL OF MEANINGFUL
PCRA REVIEW RENDERING THE PCRA
PROCEEDINGS FUNDAMENTALLY UNFAIR[?]
Appellant’s brief at 3.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in
the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman,
799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted). Lastly, we note
that, “[a]lthough this Court is willing to liberally construe materials filed by a
pro se litigant, pro se status confers no special benefit upon the
appellant[.]” Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.
2005) (citation omitted).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA
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court. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)
(citation omitted). All PCRA petitions, including second and subsequent
petitions, must be filed within one year of when a defendant’s judgment of
sentence becomes final. 42 Pa.C.S.A. § 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 the time for seeking the review.” 42 Pa.C.S.A.
§ 9545(b)(3). If a PCRA petition is untimely, a court lacks jurisdiction over
the petition. Commonwealth v. Callahan, 101 A.3d 118, 120-121
(Pa.Super. 2014).
As noted, a panel of this court affirmed appellant’s judgment of
sentence on March 21, 2014, and our supreme court denied his petition for
allowance of appeal on August 20, 2014. See Commonwealth v. Torres,
100 A.3d 315 (Pa.Super. 2014) (unpublished memorandum), appeal
denied, 97 A.3d 744 (Pa. 2014). Consequently, appellant’s judgment of
sentence became final on November 18, 2014, 90 days after our supreme
court denied appellant’s petition for allowance of appeal and the time for
filing a petition for writ of certiorari with the United States Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13(1). In order
to comply with the filing requirements of the PCRA, appellant was required
to file his petition by November 18, 2015. See 42 Pa.C.S.A. § 9545(b)(1).
As appellant’s instant petition was not filed until November 7, 2016, it is
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patently untimely. As a result, the PCRA court lacked jurisdiction to review
appellant’s petition, unless appellant alleged and proved one of the statutory
exceptions to the time-bar, as set forth in Section 9545(b)(1).
The three narrow exceptions to the one-year time-bar are as follows:
(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.A. § 9545(b)(1)(i-iii); Commonwealth v. Brandon, 51 A.3d
231, 233-234 (Pa.Super. 2012). The appellant bears the burden of pleading
and proving the applicability of one of these exceptions. Commonwealth
v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (some citations omitted). “In
addition, a petition invoking any of the timeliness exceptions must be filed
within 60 days of the date the claim first could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
The crux of appellant’s argument on appeal is that Attorney Amsley
was ineffective in failing to raise a specific ineffective assistance of trial
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counsel claim in his March 9, 2015 amended PCRA petition, and that this
satisfied the “newly-discovered fact” exception to the PCRA time-bar
because he was unaware that Attorney Amsley had even filed an amended
PCRA petition. (Appellant’s brief at 10-29.) We disagree.
Generally, claims of trial counsel ineffectiveness do not operate as an
independent exception to the one-year jurisdictional time-bar of the PCRA.
See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)
(holding a claim of ineffective assistance of counsel does not save an
otherwise untimely petition for review on the merits); see also
Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) (allegations of
ineffective assistance of counsel will not circumvent the timeliness
requirement of the PCRA); Commonwealth v. Bennett, 930 A.2d 1264,
1272–1273 (Pa. 2007) (holding that an allegation of PCRA counsel’s
ineffectiveness cannot be invoked as a “newly-discovered fact” exception to
the PCRA time-bar, except where PCRA counsel abandons his client on
appeal.)
Even to the extent that appellant’s claim that Attorney Amsley was
ineffective in failing to raise the ineffective assistance of trial counsel could
arguably be addressed as a “newly-discovered fact” claim, we conclude that
appellant is still not entitled to relief. In order to prevail on this claim,
appellant would need to demonstrate that the fact upon which the exception
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is predicated was unknown to him or that it could not have been ascertained
by the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).
Our review of the record reveals that appellant has failed to prove that
he exercised due diligence in ascertaining the claims raised by
Attorney Amsley on his behalf in the amended PCRA petition. The record
reveals that Attorney Amsley filed an amended petition on appellant’s behalf
on March 9, 2015, and that merely reading this petition would have alerted
him to the absence of his specific ineffective assistance of trial counsel claim.
Moreover, the record reveals that appellant was present at the May 27, 2015
PCRA hearing and would have been on notice that a specific issue was not
being addressed by Attorney Amsley. Under Section 9545(b)(1)(ii), “due
diligence requires neither perfect vigilance nor punctilious care, but rather it
requires reasonable efforts by a petitioner, based on the particular
circumstances, to uncover facts that may support a claim for collateral
relief.” Commonwealth v. Brown, 141 A.3d 491, 506 (Pa.Super. 2016)
(citation omitted). Clearly, appellant failed to undertake reasonable efforts
in this instance.
As appellant’s petition, his second, is patently untimely and he has
failed to plead and prove the applicability of any exception to the PCRA’s
time-bar, the PCRA court lacked jurisdiction to consider the merits of
appellant’s claims and did not err in dismissing appellant’s petition without
an evidentiary hearing.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2017
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