Com. v. Fernandez, C. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CESAR AUGUSTA FERNANDEZ
Appellant No. 74 MDA 2015
Appeal from the PCRA Order of December 15, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003598-2005
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 21, 2015
Cesar Augusta Fernandez appeals the December 15, 2014 order that
dismissed his petition for relief pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA Court provided the following summary of the procedural
history of this case:
Following a jury trial, which concluded November 15, 2006,
[Fernandez] was convicted by a jury of the following: Count 3,
Murder of the Third Degree, 18 Pa.C.S.A. § 2502(c); Count 4,
Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1); Count 5,
Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(3); Count 6,
Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(4); Count 7,
Conspiracy to Deliver (cocaine), 18 Pa.C.S.A. § 903(a)(1)(2);
Count 8, Possession of a Controlled Substance (cocaine), 75 P.S.
§ 780-113(a)(16); Count 9, Possession of a Controlled
Substance with Intent to Deliver (cocaine), 75 P.S. § 780-
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*
Former Justice specially assigned to the Superior Court.
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113(a)(30); and Count 10, Criminal Use of a Communications
Facility, 18 Pa.C.S.A. § 7512. On January 24, 2007, [Fernandez]
was sentenced to [an aggregate term of twenty-three and one-
half to forty-seven years in prison].
On February 2, 2007, [Fernandez], through his attorney, Todd
Henry, Esquire, filed an appeal with the Superior Court of
Pennsylvania, raising claims of insufficient evidence as to the
Third Degree Murder and Corrupt Organizations charges; and a
claim of error related to an uncharged predicate act contained on
the verdict slip. The Superior Court affirmed the judgment of
sentence. Commonwealth v. Fernandez, 216 MDA 2007 (Pa.
Super. April 11, 2008). Review by the Pennsylvania Supreme
Court was not sought. Therefore, [Fernandez’] judgment of
sentence became final on [May] 12, 2008.
On October 14, 2008, [Fernandez] timely filed a pro se Motion
for Post-Conviction Collateral Relief pursuant to 42 Pa.C.S.A.
§ 9541 et seq. On October 22, 2008, J. Allen Daringer, Esquire,
was appointed to represent [Fernandez] in matters relating to
post-conviction relief. Attorney Daringer was ordered to file an
amended PCRA petition or, in the alternative, file a “No Merit”
letter pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988), detailing the reasons [Fernandez’] claims have no
merit and this Court should allow counsel to withdraw. On
November 25, 2008, this Court granted Attorney Daringer an
extension of time in which to file. On January 27, 2009, an
additional sixty (60) day extension was granted. On March 27,
2009, Attorney Daringer filed a timely “Amended Post-Conviction
Relief Act Petition.” On April 20, 2009, [the PCRA court] filed a
Notice of Intent to Dismiss. On May 8, 2009, [Fernandez] filed a
pro se motion for an extension of time to file an amended
petition. On May 13, 2009, said motion was denied. On May 15,
2009, the Petition for Post Conviction Relief was denied as it was
the [o]pinion of [the PCRA court] that there were no genuine
issues of material fact, [Fernandez] was not entitled to post
conviction relief, and no purpose would be served by further
proceedings.
[Fernandez] filed a second petition, pro se, on February 22,
2013. On March 21, 2013, [the PCRA court] filed a Notice of
Intent to Dismiss the petition based on the petition being
untimely and [Fernandez] failing to allege any exceptions to the
PCRA time bar. Following [Fernandez’] response, which was filed
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April 10, 2013, the [PCRA court] dismissed [Fernandez’] petition
by order on April 22, 2013. [Fernandez] timely appealed the
dismissal order by filing a Notice of Appeal on May 9, 2013. The
Superior Court opined that [Fernandez] alleged sufficient facts to
be entitled to a hearing on the issue and remanded this matter
for an evidentiary hearing to determine whether [Fernandez]
exercised due diligence in discovering whether PCRA counsel
abandoned him. Commonwealth v. Fernandez, 832 MSA
2013 (Pa. Super. Jan. 15, 2014). Upon receipt of the record,
[the PCRA court] appointed new PCRA counsel and the
evidentiary hearing was held on August 5, 2014. Thereafter, the
parties were ordered to file briefs. On December 17, 2014, [the
PCRA court] denied the instant petition because [Fernandez]
failed to carry his burden to show that he exercised due diligence
as required under the exceptions to the time bar upon which he
was relying. [Fernandez] filed a Notice of Appeal on January 9,
2015. [The PCRA court] ordered [Fernandez] to file a concise
statement of errors complained of on appeal [pursuant to
Pa.R.A.P. 1925(b),] which he filed on January 30, 2015.
PCRA Court Opinion (“P.C.O.”), 3/3/2015, at 1-3 (footnotes omitted,
citations modified). The court filed a Pa.R.A.P. 1925(a) opinion on March 3,
2015.
Fernandez raises two issues for our review:
1. Whether the Trial Court erred in not determining that
[Fernandez] was “abandoned” by his former PCRA counsel?
2. Whether the Trial Court erred in finding that [Fernandez]
failed to exercise due diligence in discovering or determining
that his prior court-appointed PCRA counsel abandoned him?
Fernandez’ Brief at 2.
Our standard of review is well-settled:
Our standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v.
Smith, 995 A.2d 1143 (Pa. 2010). The PCRA court’s findings will
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not be disturbed unless there is no support for the findings in the
certified record. Id.Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(citations modified).
Both of Fernandez’ issues relate to the invocation of an exception to
the PCRA time bar. As a jurisdictional requirement, we must determine
whether his PCRA petition was filed timely.
Our Supreme Court has stressed that “[t]he PCRA’s timeliness
requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues
raised in a petition if it is not timely filed.” Commonwealth v.
Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa. Super. 2008)
(citation omitted); see Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa. Super. 2010) (holding no court has jurisdiction
to hear an untimely PCRA petition). It is well settled that “[a]ny
and all PCRA petitions must be filed within one year of the date
on which the petitioner’s judgment became final, unless one of
three statutory exceptions applies.” Commonwealth v. Perrin,
947 A.2d 1284, 1285 (Pa. Super. 2008) (citations, quotations,
and quotation marks omitted). “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 time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3).
Garcia, 23 A.3d at 1061-62 (footnote omitted; citations modified).
Instantly, Fernandez’ direct appeal was decided by this Court on April
11, 2008. He did not seek review in our Supreme Court. Therefore, his
judgment became final when the time in which he could have sought review
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expired, on or about May 12, 2008.1 To be filed timely, any PCRA petition
would have had to be filed on or before May 12, 2009. The instant PCRA
petition was filed on February 22, 2013, and thus, was facially untimely.
However, untimeliness is excused when the petitioner pleads and
proves one of the three statutory exceptions:
(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). Additionally, to be timely pursuant to one of
these exceptions, the PCRA petitions must be filed “within sixty days of the
date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
In his petition, Fernandez invoked the second exception. He pled that
he was never informed that his first PCRA had been dismissed and that his
attorney did not file an appeal. He alleged that he inquired about the status
of his petition from Attorney Daringer, but had received no response and
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1
The thirtieth day, May 11, 2008, fell on a Sunday. Therefore,
Fernandez had until Monday, May 12, 2008, to file for review in the Supreme
Court. See 1 Pa.C.S.A. § 1908.
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therefore, concluded that the petition was still pending. Fernandez asserted
that he did not learn that the petition had been dismissed and that no appeal
had been filed until January 2013. PCRA Petition, 2/22/2013, at 3, 7.
Fernandez argues that this amounted to attorney abandonment, which
qualified for the “newly discovered evidence” exception to the PCRA time
bar. Fernandez’ Response to Court’s Notice of Intent to Dismiss, 4/10/2013.
Our Supreme Court has held that attorney abandonment may
constitute a newly discovered fact sufficient to invoke that exception.
However, the petitioner must still demonstrate the he or she could not have
discovered the fact sooner through the exercise of due diligence.
Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). The PCRA
court found that Fernandez did not exercise due diligence and did not file his
petition within sixty days of learning that an appeal had not been filed. It
found as follows:
[B]y his own admission, [Fernandez’] Exhibit No. 8, admitted
into evidence at the evidentiary hearing on August 5, 2014,
shows that [Fernandez] himself filed, a pro se application for
relief in the Superior Court on May 17, 2010 and that, on June
25, 2010, [Fernandez] was informed directly by the Superior
Court that he had no appeal pending before that Court.
[Fernandez] had 60 days from that date to file under the
“unknown fact” exception, as it was from that point that he
should have known that no appeal was filed by his PCRA counsel.
He could have verified this fact by obtaining the public records,
which he obviously knew how to do, as he ultimately did check
the official court dockets. Nonetheless, he did not do that within
the 60 day time limit. Neither did he file this PCRA petition by
August 25 of 2010. Obviously, he knows how to file a PCRA
petition, as this is the second one he filed pro se. Thus, since
[Fernandez] failed to establish “due diligence” in order for the
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second exception to apply, this court lacks jurisdiction to
entertain [Fernandez’] second post conviction petition.
T.C.O. at 5.
Fernandez responds that the June 2010 letter from this Court did not
start the sixty-day clock because he was still unaware that his PCRA petition
had been denied. Fernandez argues that the June 2010 letter could have
meant that no appeal had been filed because the PCRA petition was still
pending in the Court of Common Pleas. Fernandez’ Brief at 19.
Based upon the record before us, we must conclude that Fernandez
did not exercise 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.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.
2015) (citations omitted). Here, the record supports the conclusion that
Fernandez wrote and called Attorney Daringer on multiple occasions in 2009
and 2010. Further, Fernandez corresponded with the PCRA court in 2009
and 2010 in an attempt to receive information on the status of his PCRA
petition. However, after his June 2010 correspondence with this Court,
Fernandez made no further efforts until January 2013. Fernandez has
offered no explanation as to why he took no steps to investigate the status
of his petition during that two-and-one-half year period. Therefore, we
cannot conclude that Fernandez took reasonable steps to protect his
interests.
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Further, even if Fernandez had attempted to provide an explanation,
the denial of his petition was public record. The courts of this
Commonwealth have made clear that matters of public record are not
“unknown” for the purposes of the exception to the PCRA time bar. See
Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (“[T]o
constitute facts which were unknown to a petitioner and could not have been
ascertained by the exercise of due diligence, the information must not be of
public record.”); Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012);
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (“[F]or
purposes of 42 Pa.C.S. § 9545(b)(1)(ii), information is not ‘unknown’ to a
PCRA petitioner when the information was a matter of public record.”);
Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007).
Because Fernandez did not prove that the newly discovered fact
exception applies, his PCRA petition was untimely. Therefore, neither the
PCRA court nor this Court has jurisdiction to entertain its merits and we
must affirm the PCRA court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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