Com. v. Vu, N. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
NGUYEN VU :
:
Appellant : No. 3326 EDA 2018
Appeal from the PCRA Order Entered October 15, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009321-2007
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 10, 2019
Nguyen Vu (Appellant) appeals pro se from the order denying his second
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case:
On March 7, 2008, following a bench trial, [the trial] court found
[Appellant] guilty of aggravated assault and related offenses. On
April 24, 2008, he was sentenced [to] an aggregate term of 10 to
20 years incarceration. Following the July 29, 2008 denial of his
post-sentence motion, [Appellant] timely filed a notice of appeal
on August 1, 2008. On November 10, 2009, the Superior Court
affirmed the judgment of sentence, and on May 5, 2010, the
Supreme Court denied his petition for allowance of appeal.
[Appellant] filed a petition under the Post Conviction Relief Act
(PCRA) on April 15, 2011. The petition was formally dismissed on
June 1, 2012. On October 30, 2013, the Superior Court affirmed
the dismissal of the petition, and on July 28, 2014, the Supreme
Court denied allowance of appeal. The Supreme Court of the
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* Retired Senior Judge assigned to the Superior Court.
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United States denied [Appellant’s] petition for writ of certiorari on
December 15, 2014. [Appellant] filed the instant PCRA petition
on January 31, 2018. [The PCRA] court issued a notice of intent
to dismiss the petition pursuant to Pennsylvania Rule of Criminal
Procedure 907 on September 7, 2018. The petition was formally
dismissed on October 15, 2018. [Appellant] filed a notice of
appeal to the Superior Court on November 13, 2018. On
December 5, 2018, [Appellant] filed a statement of matters
complained of on appeal.
PCRA Court Opinion, 1/16/19, at 1.
On appeal, Appellant raises 12 issues for our review. To summarize,
Appellant raises claims of prosecutorial interference, judicial misconduct and
ineffective assistance of trial and appellate counsel. See Appellant’s Brief at
2-3.
Preliminarily, in reviewing the denial of a PCRA petition, our review is
limited to examining whether the PCRA court’s findings are supported by the
record and free of legal error. See Commonwealth v. Hanible, 30 A.3d
426, 438 (Pa. 2011). We view the findings of the PCRA court and the evidence
of record in the light most favorable to the prevailing party. Id. “The PCRA
court’s credibility determinations, when supported by the record, are binding
on this Court; however, we apply a de novo standard of review to the PCRA
court’s legal conclusions.” See Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
Further, Pennsylvania law makes clear that no court has jurisdiction to
hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa. 2003)). A petitioner must file a PCRA petition within
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one year of the date on which the petitioner’s judgment of sentence became
final, unless one of the three statutory exceptions applies:
(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). A petitioner must file a petition invoking one of
these exceptions “within 60 days of the date the claim could have been
presented.” 42 Pa.C.S.A. § 9545(b)(2).1 If a petition is untimely, and the
petitioner has not pled and proven any exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
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1 Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), effective December
2018, and now provides that a PCRA petition invoking a timeliness exception
must be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.
Section 3 of Act 2018 provides that the amendment to subsection (b)(2) “shall
apply only to claims arising one year before the effective date . . . or
thereafter.” Id. This change does not impact Appellant or our analysis.
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Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
Appellant’s PCRA petition is facially untimely. “A judgment is deemed
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.’” Monaco, 996 A.2d at
1079 (quoting 42 Pa.C.S.A. § 9545(b)(3)).
Here, the trial court entered Appellant’s judgment of sentence on April
24, 2008. Appellant filed a post-sentence motion, which the trial court denied,
and an appeal to the Superior Court. This Court affirmed Appellant’s judgment
of sentence on November 10, 2009. See Commonwealth v. Vu, 2307 EDA
2008 (Pa. Super. Nov. 10, 2009) (unpublished memorandum). Appellant filed
a petition for allowance of appeal, which the Pennsylvania Supreme Court
denied on May 5, 2010. Appellant did not seek review with the United States
Supreme Court. Therefore, Appellant’s judgment of sentence became final 90
days from May 5, 2010, or August 3, 2010. See 42 Pa.C.S.A. § 9545(b)(3);
U.S. Sup.Ct.R. 13.
Under Section 9545(b)(1), Appellant had to file his PCRA petition within
one year of his judgment of sentence becoming final – or August 3, 2011.
Appellant did not file the instant petition, his second, until January 31, 2018.
Accordingly, we are without jurisdiction to decide Appellant’s appeal unless he
pled and proved one of the three timeliness exceptions of Section 9545(b)(1).
See Derrickson, 923 A.2d at 468.
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Appellant argues that he satisfied the newly-discovered fact exception
under Section 9545(b)(1)(ii),2 and therefore, the PCRA court has jurisdiction
over the merits of his petition. In order to qualify for this exception, a
petitioner must establish that (1) he did not know the facts upon which he
based his petition, and (2) he could not have learned those facts earlier with
the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). To qualify
as a new fact, “the information may not be part of the public record.”
Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (citation
omitted). In addition, the item must “not merely [be] a newly-discovered or
newly willing source for previously known facts.” Id. Furthermore, the
Pennsylvania Supreme Court has explained that “[d]ue diligence does not
require perfect vigilance and punctilious care, but merely a showing the party
has put forth reasonable effort to obtain the information upon which a claim
is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016).
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2 Appellant also argues that he satisfies the government interference
exception to the time-bar. This argument, however, was not raised in the
PCRA petition; Appellant raised it for the first time in his appellate brief filed
in this Court. The PCRA requires a petitioner to raise an exception in the
petition. Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005)
(stating that the defendant “was required to plead the cognizability of his
petition in the petition itself”); see also 42 Pa.C.S.A. § 9545(b)(1)(i)
(providing that any petition shall be filed within one year of the date the
judgment becomes final “unless the petition alleges and the petition proves
that” one of the enumerated exceptions to the PCRA time-bar applies).
Further, Appellant was not granted leave to amend his petition to include
additional exceptions to the PCRA time-bar. Accordingly, we decline to
address this argument.
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Appellant avers that “in [h]abeas [c]orpus proceeding at the Federal
District Court, [the district attorney’s office] hid exculpatory evidence to
Appellant. . . and lied in their [r]esponse.” Appellant’s Brief at 8. Appellant’s
argument is based on alleged inconsistencies in the version of the facts the
complainant told authorities during the initial investigation, the testimony at
the preliminary hearing, and the testimony at trial. Appellant contends that
the district attorney’s office was in possession of documents that would have
shown that the complainant “repeatedly [gave] false statements to the police,
detectives; testified at the preliminary hearing and trial.” Id. at 9. The
documents Appellant references in support of his claim include:
(1) complaint or incident report; (2) [the complainant’s]
investigation interview record; (3) affidavit of probable cause; (4)
notes of testimony at the preliminary hearing; (5) motion for
discovery; (6) color photographs of [complainant’s] vehicle; (7)
information concerning [complainant’s] 9-mm handgun; (8) copy
of [complainant’s] Montgomery County gun permit; (9) Defense
expert’s accident reconstruction report; (10) Commonwealth
expert’s accident reconstruction report; (11) notes of testimony
at trial on 3/6/08, on 3/7/08, and at sentencing on 4/24/08; and
(12) [complainant’s] emailed victim impact statement read into
the record at sentencing on 4/24/08.
Appellant’s Brief at 8 (citations omitted). Appellant posits that the district
attorney’s office hid these exculpatory documents from Appellant.
Appellant fails to satisfy the newly-discovered fact exception for two
reasons. First, Appellant raised this same claim on direct appeal challenging
the weight of the evidence for his convictions. See Commonwealth v. Vu,
2307 EDA 2008 (Pa. Super. Nov. 10, 2009) (summarizing Appellant’s weight
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claim as based on inconsistencies in facts the complainant told authorities
during the investigation, trial, and sentencing). We cannot conclude that the
same facts now incorporated in Appellant’s second PCRA petition constitute
“newly discovered facts” qualifying as an exception to the PCRA time-bar.
Second, the information Appellant cites in support of his claim was available
to Appellant and could have been obtained by due diligence. Appellant
acknowledged that much of the information was testimony from his bench trial
or read into the record during sentencing. Thus, the alleged exculpatory
evidence Appellant relies upon at this juncture has been available to him and
his prior counsel since 2008, when Appellant was tried, convicted and
sentenced. Appellant could have obtained the documents and information
relating to any prosecutorial interference by exercising due diligence at that
time. He did not. Accordingly, Appellant has not shown that he acted with
due diligence.
It is irrelevant that Appellant’s petition for rehearing on his writ of
certiorari was not denied until December 4, 2017, and his PCRA petition was
filed January 31, 2018. As the PCRA court recognized, “[e]ven assuming,
arguendo, that [Appellant] did discover new evidence during his habeas
proceedings, he received that information in the Commonwealth’s response
filed February 3, 2015, and did not file his petition within 60 days.” PCRA
Court Opinion, 1/16/19, at 3 (citing Commonwealth v. Jones, 54 A.3d 14,
18 (Pa. 2012) (holding that a PCRA petition based on information discovered
during habeas proceedings must be filed within 60 days of receipt of that
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information)). As a result, Appellant’s petition was untimely and properly
dismissed as such by the PCRA court.
In sum, the information upon which Appellant relies to qualify for the
newly discovered fact exception was known or knowable well before Appellant
filed his PCRA petition, and does not meet the requirement prescribed in
Section 9545(b)(1)(ii). Because Appellant’s petition is untimely and not
subject to a statutory exception to the PCRA’s time bar, the PCRA court lacked
jurisdiction. We therefore affirm the order denying relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/19
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