Com. v. Cacho, E. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ERIC CACHO :
:
Appellant : No. 1142 EDA 2022
Appeal from the PCRA Order Entered April 7, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1008121-1999
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED JANUARY 20, 2023
Eric Cacho (“Cacho”) appeals pro se from the order dismissing his
untimely serial petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”).1 We affirm.
The PCRA court previously provided the following summary of the
factual and procedural history of this case:
Following a jury trial . . ., [Cacho] was found guilty of third[-
]degree murder, possessing instruments of crime, aggravated
assault, [recklessly endangering another person], and [carrying a
firearm without a license, all stemming from an incident in
February 1999 during which Cacho shot his victim, Michael
Sanchez, outside of a bar]. [Cacho] was sentenced to consecutive
terms of imprisonment of 20 to 40 years [f]or third[-]degree
murder, 10 to 20 years for aggravated assault, 3 ½ to 7 years for
[carrying a firearm without a license], 2 ½ to 5 years for
[p]ossessi[ng] instrument[s] of crime, and 2 ½ to 5 years for
[recklessly endangering another person]. [Cacho filed a direct
appeal,] and the Superior Court affirmed the [j]udgment of
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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[s]entence on May 19, 2004. [Cacho] did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
PCRA Court Opinion, 8/28/12, at 1; see also Commonwealth v. Cacho, 909
A.2d 867, No. 2960 EDA 2005 (Pa. Super. 2006) (unpublished memorandum
at *2-*3) (detailing the factual history of this case). Cacho filed several PCRA
petitions in the intervening years.
On February 12, 2019, Cacho filed the instant PCRA petition, pro se, in
which he alleged the trial judge gave a constitutionally defective jury
instruction and that trial counsel, and “all prior counsel,” were ineffective for
failing to recognize that the jury instruction was deficient. See PCRA Petition,
2/12/19, at p. 3. On December 22, 2021, the PCRA court issued a notice of
intent to dismiss Cacho’s petition as untimely pursuant to Pa.R.Crim.P. 907.
Cacho filed no response to the court’s Rule 907 notice, and the court dismissed
his petition on April 7, 2022. Cacho timely appealed. The PCRA court did not
order Cacho to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).2
Cacho raises the following issues for our review:
1. Did the PCRA court err in conflating the facts revealed in
Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. Aug. 11,
2017) [(unreported)] with the court’s final conclusion in that
matter to conclude [that Cacho] attempted to rely upon a
judicial decision to invoke the unknown facts exception to
the PCRA?
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2 The PCRA court nevertheless authored a Rule 1925(a) opinion explaining its
ruling.
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2. Did the PCRA court err in misapplying the after-discovered
facts exception to the PCRA in this case by concluding the
court’s factual findings in Brooks v. Gilmore . . . did not
present a new fact that was unknown to [Cacho]?
Cacho’s Brief at 8 (unnecessary capitalization omitted).
Our standard of review is well-settled:
Our review of a PCRA court’s decision is limited to examining
whether the PCRA court’s findings of fact are supported by the
record, and whether its conclusions of law are free from legal
error. We view the record in the light most favorable to the
prevailing party in the PCRA Court. We are bound by any
credibility determinations made by the PCRA court where they are
supported by the record. However, we review the PCRA court’s
legal conclusions de novo.
Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018) (internal citation
and quotations omitted).
As both of Cacho’s issues hinge on whether the PCRA court properly
dismissed his untimely petition, we address his issues together. Under the
PCRA, any petition “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final[.]” 42 Pa.C.S.A.
§ 9545(b)(1). A judgment of sentence 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). The PCRA’s
timeliness requirements are jurisdictional in nature, and a court may not
address the merits of the issues raised if the PCRA petition was not timely
filed. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
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As noted above, this Court affirmed Cacho’s judgment of sentence on
May 19, 2004, and Cacho did not petition our Supreme Court for allowance of
appeal. Accordingly, his judgment of sentence became final thirty days later,
i.e., on June 18, 2004, and he had one year from this date to file a timely
PCRA petition, i.e., by June 20, 2005.3 See 42 Pa.C.S.A. § 9545(b)(3); see
also Pa.R.A.P. 1113(a). Cacho’s present petition, filed February 12, 2019, is
thus facially untimely.
Pennsylvania courts may nevertheless consider an untimely PCRA
petition if the petitioner can plead and prove one of three exceptions set forth
in section 9545(b)(1)(i)-(iii). See Commonwealth v. Taylor, 65 A.3d 462,
468 (Pa. Super. 2013) (providing that a PCRA court must dismiss an untimely
petition if no exception is pleaded and proven). Section 9545(b)(1)(ii)
provides an exception to the PCRA’s timeliness requirement if “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[.]” 42 Pa.C.S.A.
§ 9545(b)(1)(ii). “[J]udicial decisions do not constitute new ‘facts’ for
purposes of the newly-discovered evidence exception set forth in Section
9545(b)(1)(ii).” Commonwealth v. Kretchmar, 189 A.3d 459, 467 (Pa.
Super. 2018). Accord Commonwealth v. Watts, 23 A.3d 980, 987 (Pa.
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3The thirtieth day after May 19, 2004 was June 18, 2004; however, June 18,
2005 fell on a Saturday. See 1 Pa.C.S.A. § 1908.
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2011) (stating that “subsequent decisional law does not amount to a new ‘fact’
under section 9545(b)(1)(ii) of the PCRA”).4
Cacho argues his trial judge gave a jury instruction that was
“unconstitutional as it elevated the level of doubt required for acquittal in
violation of clearly established [f]ederal [l]aw as announced by the United
States Supreme Court,” and recognized by a federal district court in Brooks
v. Gilmore. See Cacho’s Brief at 10. Cacho maintains he learned about the
unconstitutionality of the jury instruction through a newspaper article on
January 2, 2019. See id. at 11. Cacho argues that his newly discovered fact
is the unconstitutionality of the jury instruction. See id. at 11, 16. Lastly,
Cacho maintains the PCRA court erred because it “presumed [he] had prior
knowledge of the unconstitutional nature of the instruction yet failed to
challenge it.” Id. at 20.
The PCRA court considered Cacho’s assertions and determined they lack
merit:
[F]or this [c]ourt to have jurisdiction to review the merits of
your claim, the burden falls upon you to plead and prove that one
of the enumerated exceptions to the timeliness provision set forth
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4 Further, any PCRA petition invoking one of the timeliness exceptions in
section 9545(b)(1) “shall be filed within one year of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2). See also
Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa. Super. 2011)
(holding that “a petitioner invoking section 9545(b)(1)[] must still comply with
section 9545(b)(2) by presenting the claim within [one year] of discovering
the new fact”) (internal citations and emphasis omitted).
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in 42 [Pa.C.S.A.] § 9545(b) applies to your case. You arguably
are trying to establish the newly-discovered fact exception,
§ 9545(b)(1)(ii), by including an article about a reasonable-doubt
jury instruction charge . . . that contained a hypothetical which
was determined to be improper. In support of your claim, you
submit also a portion of a trial transcript which appears to be from
your trial that includes similar but not identical language to the
reasonable doubt charge determined to be improper. See PCRA
Petition 2/12/2019.
[J]udicial decisions do not qualify as previously-unknown
facts. See Commonwealth v. Watts, 23 A.3d 980, 986 ([Pa.]
2011) (holding, a judicial opinion does not qualify as a
previously-unknown fact capable of triggering the timeliness
exception set forth in section 9545(b)(1)(ii) of the PCRA).
****
As you fail to plead and prove one of the exceptions to the
PCRA time-bar, this [c]ourt is without jurisdiction to consider the
merits of your claim or offer any form of relief. Accordingly, this
[c]ourt is constrained to dismiss your petition as untimely without
exception.
Rule 907 Notice, 12/22/21, at 1-2 (footnote omitted).
Following our review, we discern no error by the PCRA court. Cacho’s
PCRA petition was facially untimely. The PCRA therefore required Cacho to
plead an exception to the timeliness requirement. Cacho asserts that he only
learned that the trial court’s jury instruction was defective in January 2019
and that he promptly filed his PCRA petition thereafter. Yet this Court, as well
as our Supreme Court, have regularly held that judicial opinions are not facts
for purposes of establishing a newly discovered fact exception to the PCRA’s
timeliness requirement pursuant to section 9545(b)(1)(ii). See Kretchmar,
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189 A.3d at 467; Watts, 23 A.3d at 987.5 As Cacho failed to establish a newly
discovered fact exception to the PCRA’s timeliness requirement, the PCRA
court correctly concluded it lacked jurisdiction over Cacho’s untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2023
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5 We observe that our Supreme Court recently agreed that a similar jury
instruction was deficient based on the reasoning in Brooks. See
Commonwealth v. Drummond, --- A.3d ----, No. 28 EAP 2021, 2022 WL
17171610 at *14 (Pa. 2022). This, however, does not impact our timeliness
analysis. Drummond raised this issue in a timely PCRA petition. We further
observe that, while the faulty jury instruction satisfies the arguable merit
prong of the ineffectiveness test, a petitioner would still have to prove that
counsel lacked a reasonable basis for failing to object to the instruction, and,
further, “it is well-settled that counsel cannot be held ineffective for failing to
anticipate a change in the law.” Id. (footnotes and quotations omitted).
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