Com. v. Gonzalez, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ABIDIK QUESADA GONZALEZ :
:
Appellant : No. 258 MDA 2018
Appeal from the PCRA Order January 12, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005872-2010,
CP-67-CR-0006451-2010, CP-67-CR-0006452-2009
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: NOVEMBER 9, 2018
Abidik Quesada Gonzalez (Appellant) appeals from the order denying
his petition for writ of habeas corpus. We affirm.
On May 9, 2011, Appellant pled guilty at docket numbers CP-67-CR-
6452-2009 (6452-2009) and CP-67-CR-6451-2010 (6451-2010) to one count
of fleeing or attempting to elude police1 and four counts of possession with
the intent to deliver a controlled substance.2 The same day, pursuant to the
plea agreement, the trial court sentenced Appellant to an aggregate three-
and-a-half to seven years of incarceration. Appellant did not file a direct
appeal from his judgment of sentence at docket numbers 6452-2009 and
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1 75 Pa.C.S.A. § 3733(a).
2 35 P.S. § 780-113(a)(30).
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6451-2010. Therefore, Appellant’s judgment of sentence at these dockets
became final 30 days later on June 9, 2011, when the 30-day period for filing
an appeal with this Court expired. See Pa.R.A.P. 903(a).
On November 3, 2011, at docket number CP-67-CR-5872-2010 (5872-
2010), a jury found Appellant guilty of aggravated assault.3 On January 27,
2012, the trial court sentenced Appellant at docket number 5872-2010 to 7½
to 15 years of incarceration. On February 24, 2012, Appellant timely
appealed his judgment of sentence at docket number 5872-2010 to this Court.
On November 8, 2012, this Court affirmed Appellant’s judgment of sentence.
See Commonwealth v. Gonzalez, 394 MDA 2012 (Pa. Super. Nov. 8, 2012)
(unpublished memorandum). Appellant did not petition for allowance of
appeal to the Pennsylvania Supreme Court. Therefore, Appellant’s judgment
of sentence at docket number 5872-2010 became final 30 days later on
December 10, 2012. See Pa.R.A.P. 1113(a).4
In the years since Appellant’s appeal at docket number 5872-2010,
Appellant has filed at all three docket numbers several petitions pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, none of
which have afforded him any relief. On February 27, 2017, at all three docket
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3 18 Pa.C.S.A. § 2702(a)(1).
4 December 8, 2012 was a Saturday. See 1 Pa.C.S.A. § 1908 (“Whenever
the last day of any such period shall fall on Saturday or Sunday, . . . such day
shall be omitted from the computation.”).
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numbers, Appellant filed the underlying pro se petition for writ of habeas
corpus in which he raised numerous claims, including, inter alia, prosecutorial
misconduct, the violation of his constitutional right to counsel, ineffective
assistance of counsel, evidentiary claims, and witness tampering. See Petition
for Writ of Habeas Corpus, 2/27/17, ¶ 13. On June 30, 2017, the trial court
entered a notice of its intent to dismiss Appellant’s Habeas petition pursuant
to Rule 907 of the Pennsylvania Rules of Criminal Procedure. The court
concluded that Appellant’s Habeas petition was actually an untimely PCRA
petition over which it had no jurisdiction. See Trial Court Order, 6/30/17, at
1-4. On January 12, 2018, the trial court dismissed the petition. On February
6, 2018, Appellant filed a counseled notice of appeal.5
On appeal, Appellant raises the following issue:
I. WHETHER THE TRIAL COURT ERRED IN DISMISSING
APPELLANT’S PETITION FOR WRIT OF HABEAS CORPUS AS
UNTIMELY[,] TREATING THE PETITION AS A PCRA
PETITION?
Appellant’s Brief at 4.
It is well settled “that the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.” Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002). As Section 9542 of the
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5 Both the trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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PCRA itself explicitly states, “[t]he action established in this subchapter shall
be the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram nobis.” 42
Pa.C.S.A. § 9542.
Appellant asserts that the trial court erred in treating his petition for writ
of habeas corpus as a PCRA petition because his petition raised an allegation
of prosecutorial misconduct, and such claim does not fit within the parameters
of Section 9543(a)(2)6 that would make him eligible for relief under the PCRA.
Appellant is correct that his prosecutorial misconduct claim is not cognizable
under Section 9543 of the PCRA. See Commonwealth v. Sepulveda, 55
A.3d 1108, 1138 (Pa. 2012) (“We agree with the PCRA court that appellant’s
claim is not cognizable to the extent it sounds in a claim of prosecutorial
misconduct.”).
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6 The PCRA requires a petitioner to plead and prove that his conviction or
sentence resulted from one of the following: a constitutional violation that so
undermined the truth-determining process that no reliable adjudication of
guilt or innocence could have taken place, 42 Pa.C.S.A. § 9543(a)(2)(i);
ineffective assistance of counsel, 42 Pa.C.S.A. § 9543(a)(2)(ii); an unlawfully
induced guilty plea, 42 Pa.C.S.A. § 9543(a)(2)(iii); the improper obstruction
by governmental officials of the petitioner’s right of appeal, 42 Pa.C.S.A. §
9543(a)(2)(iv); the unavailability at the time of trial of exculpatory evidence,
42 Pa.C.S.A. § 9543(a)(2)(vi); an illegal sentence, 42 Pa.C.S.A. §
9543(a)(2)(vii); or a proceeding in a tribunal that lacked Jurisdiction, 42
Pa.C.S.A. § 9543(a)(2)(viii).
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This does not mean, however, that Appellant’s petition was
misconstrued as a PCRA petition. First, at least one of the claims Appellant
raised in his habeas petition is cognizable under the PCRA (ineffective
assistance of counsel). See 42 Pa.C.S.A. § 9543(a)(2)(ii). Moreover,
Appellant’s prosecutorial misconduct claim was waived because he failed to
raise it before the trial court. Therefore, to the extent Appellant could raise
the claim of prosecutorial misconduct, he had to present it in the context of
counsel’s ineffectiveness. Our Supreme Court has explained:
If the defendant thinks the prosecutor has done something
objectionable, he may object, the trial court rules, and the ruling
– not the underlying conduct – is what is reviewed on appeal.
Where, as here, no objection was raised, there is no claim of
“prosecutorial misconduct” as such available. There is, instead, a
claim of ineffectiveness for failing to object, so as to permit the
trial court to rule.
Commonwealth v. Tedford, 960 A.2d 1, 29 (Pa. 2008); see also 42
Pa.C.S.A. § 9544(b) (“For purposes of this subchapter, an issue is waived if
the petitioner could have raised it but failed to do so before trial, at trial,
during unitary review, on appeal or in a prior state postconviction
proceeding.”). A defendant cannot circumvent waiver or the PCRA’s time
limitations by filing a habeas petition. Our Supreme Court has stated,
“[s]imply because a petition is not considered because of previous litigation
or waiver does not alter the PCRA’s coverage of such claims or make habeas
corpus an alternative basis for relief.” Commonwealth v. Fahy, 737 A.2d
214, 224 (Pa. 1999). Accordingly, we conclude that the trial court
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appropriately treated Appellant’s habeas petition as a PCRA petition. We
therefore consider the timeliness of the petition.
“Pennsylvania law makes clear 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 one year of
the date on which the petitioner’s judgment became final, unless one of the
three statutory exceptions apply:
(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). 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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Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).
As set forth above, Appellant’s judgments of sentence at docket
numbers 6452-2009 and 6451-2010 became final on June 9, 2011, and at
docket number 5872-2010 on December 10, 2012. Appellant had one year –
until June 11, 20127 at docket numbers 6452-2009 and 6451-2010, and
December 10, 2013 at docket number 5872-2010 – to file a timely PCRA
petition. Thus, the underlying petition, which Appellant filed on February 27,
2017, is facially untimely, and we lack jurisdiction unless Appellant pled and
proved one of the three timeliness exceptions of section 9545(b)(1). See id.
Our review reveals that Appellant did not attempt to plead or prove any of the
timeliness exceptions of section 9545(b)(1) in his PCRA petition. See Petition
for Writ of Habeas Corpus, 2/27/17. Accordingly, we lack jurisdiction to
address the merits of the appeal. See Derrickson, 923 A.2d at 468.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2018
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7 See supra, n.4.
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