Com. v. Santos, A. ( 2017 )


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  • J-S04044-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                              :
    :
    :
    ANGEL ANTONIO SANTOS                       :
    :
    Appellant                :   No. 617 EDA 2016
    Appeal from the PCRA Order January 27, 2016
    In the Court of Common Pleas of Lehigh County
    Criminal Division at No(s): CP-39-CR-0004603-2011,
    CP-39-CR-0005159-2011
    BEFORE: SHOGAN, OTT, JJ., and STEVENS, P.J.E.*
    MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 23, 2017
    Angel Santos (“Appellant”) appeals, pro se, from the order entered by
    the Court of Common Pleas of Lehigh County dismissing his second petition
    filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
    9546, as untimely. We affirm.
    On October 24, 2012, Appellant entered a negotiated guilty plea to
    one count of possession with intent to deliver, and the trial court imposed a
    sentence of five to ten years’ imprisonment.           Appellant filed an untimely
    post-sentence motion on November 19, 2012, which the trial court denied
    on January 3, 2013. Appellant filed a pro se notice of appeal on January 14,
    2013, which this Court quashed as untimely on February 3, 2014.
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
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    Therefore,   Appellant’s    judgment       of   sentence    became    final   on
    November 26, 2012, when, upon the expiration of 30 days from when the
    trial court entered judgment of sentence, he had filed no notice of appeal. It
    follows that November 27, 2012, represented the commencement date of
    Appellant’s one-year filing period under the PCRA.
    During Appellant’s one-year limitations period, he filed a patently
    untimely Notice of Appeal (on January 14, 2013) and a premature PCRA
    petition (on September 25, 2013, during the pendency of his direct appeal)
    alleging plea counsel’s failure to file a requested direct appeal and seeking
    the reinstatement of his direct appeal rights nunc pro tunc. On September
    27, 2013, the PCRA court dismissed Appellant’s PCRA petition “without
    prejudice” because his direct appeal was still pending before this Court. This
    Court subsequently entered its order of February 3, 2014, quashing
    Appellant’s direct appeal as untimely filed.              By this time, however,
    Appellant’s one-year PCRA limitations period had expired at the close of
    November 25, 2013.
    Nearly four months later, on March 17, 2014, Appellant filed what the
    court properly construed as his first PCRA petition, discerning no prejudice in
    this regard from his previously-filed premature petition.                  The Court
    appointed   counsel,    who      filed   a     “no    merit   letter”   pursuant    to
    Commonwealth v. Finley, 
    550 A.2d 213
    (Pa.Super. 1988) and requested
    leave to withdraw. The PCRA court granted leave and, after issuing notice to
    dismiss pursuant to Pa.R.Crim.P. 907 Notice, dismissed Appellant’s appeal as
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    patently untimely.      This Court affirmed on appeal.    Commonwealth v.
    Santos, No. 132 EDA 2015, unpublished memorandum at 2-3 (Pa.Super.
    filed    November     6,   2015)   (citing   42   Pa.C.S.A.   §     9545(b)(3);
    Commonwealth v. Brown, 
    943 A.2d 264
    , 268 (Pa. 2008) (holding
    expiration of time period for seeking direct review, and not appellate
    dismissal of untimely notice of appeal filed within one-year, triggers PCRA’s
    one-year limitation period)).
    On December 28, 2015, Appellant filed this, his second, PCRA petition
    seeking to reinstate his direct appeal rights, nunc pro tunc, and requesting
    an evidentiary hearing. On January 5, 2016, the PCRA court issued its Rule
    907 Notice to Dismiss. On January 26, 2016, Appellant filed an objection to
    the notice asserting that the Superior Court wrongfully found his first PCRA
    petition untimely when the premature petition he filed during the pendency
    of his direct appeal was filed within the PCRA’s one-year limitations period.
    The court’s treatment of his petitions, he maintained, was tantamount to
    governmental interference with the presentation of his claim. By its Order of
    January 27, 2016, the PCRA court dismissed Appellant’s petition as untimely.
    This appeal followed.
    Appellant presents the following two questions on appeal:
    I.   DID THE COURT BELOW ERR AS A MATTER OF LAW
    WHEN IT DENIED MOTIONS TO WITHDRAW GUILT
    PLEA?
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    II.   WAS APPELLANT DENIED DUE PROCESS OF LAW IN
    SUBSEQUENT POST-SENTENCE PROCEEDINGS IN
    STATE COURT?
    Appellant’s brief at 6.
    On appeal from the denial of PCRA relief, our standard and scope of
    review is limited to determining whether the PCRA court's findings are
    supported by the record and without legal error.”        Commonwealth v.
    Edmiston, 
    65 A.3d 339
    , 345 (Pa. 2013) (citation omitted). “[Our] scope of
    review is limited to the findings of the PCRA court and the evidence of
    record, viewed in the light most favorable to the prevailing party at the
    PCRA court level.”    Commonwealth v. Koehler, 
    36 A.3d 121
    , 131 (Pa.
    2012) (citation omitted).
    Preliminarily, we note that we may not address Appellant’s claims
    unless he filed timely his second PCRA petition, for no court has jurisdiction
    to hear an untimely PCRA petition. See Commonwealth v. Monaco, 
    996 A.2d 1076
    , 1079 (Pa.Super. 2010). The PCRA provides that a petition for
    relief, including a second or subsequent petition, shall be filed within one
    year of the date the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A
    judgment is 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. § 9545(b)(3) (emphasis added).
    The PCRA court may excuse a patently late filing of a PCRA petition if
    the petition alleges and the petitioner proves any one of three exceptions to
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    the time limitations set forth in Section 9545(b)(1) of the statute. A petition
    invoking an exception to the PCRA time-bar must “be filed within 60 days of
    the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
    We construe Appellant’s brief to argue that his facially untimely
    petition qualifies for the “government interference” exception, which applies
    when the failure to raise a claim previously was due to unlawful interference
    by government officials, see 42 Pa.C.S. § 9545(b)(1)(i), because plea
    counsel ineffectively failed to file a requested direct appeal in a timely
    manner, and the PCRA courts have erroneously denied his multiple requests
    for collateral relief in the form of reinstatement of direct appellate rights
    nunc pro tunc. Specifically, the sum of Appellant’s argument in this respect
    is as follows:
    Appellant has filed three PCRA petitions this being his third to
    reinstate his appellate rights nunc pro tunc. The record in this
    matter clearly establishes that the appeal was quashed because
    appellate counsel Banta abandoned the case.          The factual
    circumstances supported by the record warranted the
    reinstatement of appellate rights nunc pro tunc.        [citations
    omitted]. The trial court has abused it’s [sic] discretion each
    time, denying Appellant his substantive rights as presented in
    the above. . . . The factual circumstances supported by the
    record as presented in the above and applicable Constitutional
    law demonstrate the trial court has committed plain error in
    denying Appellant reinstatement of his direct appeal rights nunc
    pro tunc and that Appellant has been denied fair process in post-
    sentencing proceeding denying Appellant’s substantial rights.
    Appellant’s brief at 17-18.
    Neither his ineffective assistance of counsel claim nor his complaint
    with unfavorable court orders, however, brings the present petition under
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    the government interference exception.               Preliminarily, it is settled that
    alleging ineffective counsel will not satisfy the requirements of the
    government interference exception.           See 42 Pa.C.S. § 9545(b)(4) (“For
    purposes of this subchapter, ‘governmental officials' shall not include
    defense counsel, whether appointed or retained); Commonwealth v.
    Crews, 
    863 A.2d 498
    , 503 (Pa. 2004) (“It is well settled that the alleged
    ineffectiveness of all prior counsel, including the first PCRA counsel, does not
    fall within the governmental interference exception.”).
    Moreover, the record belies Appellant’s undeveloped assertion that the
    PCRA court interfered with his ability to bring an ineffective assistance of
    plea counsel claim within a timely PCRA petition.              Appellant’s first PCRA
    petition, though technically timely vis a vis the PCRA’s one-year limitations
    period, was premature given the pendency of Appellant’s ill-fated, untimely
    direct appeal.     Without jurisdiction over the petition, therefore, the PCRA
    court rightly dismissed it without prejudice to file what the court would deem
    a   first   PCRA   petition   once   the    direct   appeal   was   resolved.    See
    Commonwealth v. Leslie, 
    757 A.2d 984
    (Pa.Super. 2000) (holding court
    should have dismissed petition without prejudice as premature given
    pendency of direct appeal).
    Appellant filed a second PCRA petition, functionally his first for
    purposes of review, after this Court quashed his untimely direct appeal.
    Because the one-year PCRA filing period had since expired, however, it was
    incumbent upon Appellant to plead and prove a Section 9545(b)(1)
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    exception in the petition and to file said petition within 60 days of the date of
    the order resolving his untimely direct appeal.       Cf. Commonwealth v.
    Lark, 
    746 A.2d 585
    (Pa. 2000) (holding subsequent PCRA petition, deferred
    until resolution of first petition, must comply with Section 9545(b)(1) and
    (2) if deferral period brought petition outside of PCRA one-year limitations
    period). Although Appellant filed his petition in accordance with the 60-day
    provision, the record reveals that he raised no Section 9545(b) exception to
    the applicable one-year time-bar.     See 
    Santos, supra
    .       Accordingly, this
    PCRA court dismissed Appellant’s petition as untimely and this Court
    affirmed.
    Only in Appellant’s instant petition, functionally his second for
    purposes of PCRA review, did he characterize the PCRA court’s handling of
    his premature petition as an act of governmental interference with his
    attempt to file a timely PCRA petition seeking reinstatement of direct appeal
    rights. See Appellant’s “Objection to PCRA Court’s 907 Notice of Intent to
    Dismiss,” C.R. #46 (arguing PCRA court misled Appellant when it dismissed
    his premature petition “without prejudice.”). This argument, which is in any
    event absent from his brief and, therefore, waived, fails not only as a
    meritless attack on the required dismissal of his premature petition but also
    under both the Act’s aforementioned 60-day rule and the requirement under
    Section 9543(a)(3) that an allegation of error has not been waived. See 42
    Pa.C.S. § 9543(a)(3).      As noted above, Appellant had the opportunity,
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    indeed, the obligation, in his first PCRA petition to couch this claim within a
    Section 9545(b)(1)(i) exception to the PCRA time-bar, but he failed to do so.
    Appellant has not, therefore, established the PCRA court’s jurisdiction
    to grant relief on his untimely second PCRA petition. Accordingly, we affirm
    the order of the PCRA court dismissing this petition.
    Order is Affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/23/2017
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