Com. v. Hidalgo, E. ( 2021 )

J-A25014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EFRAIN GUADIONEX HIDALGO, JR. :
:
Appellant : No. 122 WDA 2021
Appeal from the PCRA Order Entered December 23, 2020,
in the Court of Common Pleas of Blair County,
Criminal Division at No(s): CP-07-CR-0000094-2000.
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 21, 2021
Efrain Guadionex Hidalgo, Jr., appeals from the order denying as
untimely his serial petition for relief filed pursuant to the Post Conviction Relief
Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
Hidalgo’s convictions result from his being the head of a heroin
distribution enterprise that brought heroin from Buffalo, New York, into Blair
County. This Court has summarized the additional facts and partial procedural
history as follows:
Hidalgo was convicted, following a jury trial, of five counts
of possession with intent to deliver (heroin), criminal
conspiracy, dealing in proceeds of unlawful activities,
corrupt organizations and corrupt organizations
(conspiracy). On September 26, 2000, Hidalgo was
sentenced to an aggregate term of 60-150 years of
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* Retired Senior Judge assigned to the Superior Court.
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imprisonment. The jury did not render a decision regarding
the amount of heroin Hidalgo possessed.
On October 4, 2000, Hidalgo filed a motion for
reconsideration/modification of sentence, which was denied
without a hearing. He appealed that decision to our Court.
On July 23, 2001, this Court affirmed Hidalgo’s judgment of
sentence. Hidalgo filed a petition for allowance of appeal to
the Pennsylvania Supreme Court which was denied on
January 24, 2002. On June 10, 2002, Hidalgo filed a pro se
PCRA petition, which was denied on April 13, 2006. After
Hidalgo challenged the denial of his petition in a collateral
appeal, our Court denied him relief on April 11, 2007.
Hidalgo filed a petition for allowance of appeal from that
decision, which was denied by our Supreme Court on August
20, 2008.
On October 17, 2011, Hidalgo filed [a] pro se “Motion to
Vacate Illegal Sentence[.]” The trial court determined that
the matter was properly captioned as a PCRA petition and
appointed counsel to represent Hidalgo. Counsel filed an
amended motion on March 28, 2012. The trial court denied
that motion on July 5, 2013[.]
Commonwealth v. Hidalgo, 108 A.3d 115 (Pa. Super. 2014), non-
precedential decision at 1-3 (footnotes omitted).
Hidalgo appealed to this Court. On October 15, 2014, we found that the
court below properly treated Hidalgo’s filing as an untimely PCRA petition. Id.
at 5-6. Additionally, we noted that, because he did not allege in his petition
or on appeal any exceptions to the PCRA’s time bar, the trial court lacked
jurisdiction to consider the merits of the petition and properly dismissed it.
Id. at 6. We therefore affirmed the order denying Hidalgo post-conviction
relief. Id. Our Supreme Court denied Hidalgo’s petition for allowance of
appeal on February 11, 2015. Commonwealth v. Hidalgo, 109 A.3d 678(Pa. 2015).
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On August 6, 2015, Hidalgo filed a counseled PCRA petition. Hidalgo
filed a pro se supplemental/amendment to the counseled petition on August
27, 2018. Thereafter, new counsel filed a motion for discovery on October 3,
2019. This motion sought disclosure of telephone intercepts between Hidalgo
and one of the Commonwealth’s informants.
Hidalgo filed an amended petition on June 3, 2020. On October 8, 2020,
the parties presented oral argument regarding the timeliness of Hidalgo’s
serial PCRA petition. By order entered December 23, 2020, the PCRA court
denied the petition. This appeal followed. The PCRA court did not require
Pa.R.A.P. 1925 compliance.
Hidalgo raises the following issues on appeal:
1. Whether the [PCRA court] erred by dismissing as
untimely the petition for relief under the PCRA as to the
claim of [Hidalgo], who is a member of the Mohawk
Nation of the Six Nations Confederation, grounded on a
Native American treaty, 7 Stat. 46, at Article VII, and
[Hidalgo’s] rights arising thereunder, inasmuch as
[Hidalgo’s] rights arising under that treaty were violated
in that no complaint by the Commonwealth to the
principal chiefs of the Six Nations was made before
initiation of the criminal action against [Hidalgo], and the
rights, privileges and immunities arising [from] that
Native American treaty are not subject to the statute of
limitations at 42 Pa.C.S. § 9545(b), so rendering the
treaty claim timely?
2. Whether the [PCRA court] erred by dismissing as
untimely the petition for relief under the PCRA as to the
claim of [Hidalgo], which was based on the
Commonwealth’s refusal to disclose the intercepts of
telephone calls between an informant and [Hidalgo] and
any transcriptions of those intercepts, which disclosure
was mandated and may have contained exculpatory
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matter, and the refusal to disclose was meritless, willful
and in bad faith and has been ongoing, rendering the
claim at issue subject to the timeliness exception for
governmental interference at 42 Pa.C.S. § 9545(b)(1)(i)
and so timely?
Hidalgo’s Brief at 4-5 (emphasis omitted).
We first determine whether Hidalgo’s serial PCRA petition was untimely
filed. The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A PCRA petition invoking one of these
statutory exceptions must be filed within one year of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). In addition, exceptions to
the PCRA’s time bar must be pled in the petition and may not be raised for
the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.
Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised
before the lower court are waived and cannot be raised for the first time on
appeal).
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Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, “Hidalgo’s judgment of sentence became final on April 24, 2002,
when the time expired to file a writ of certiorari with the United States
Supreme Court following the denial of Hidalgo’s petition for allowance of
appeal. 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. R. 13.” Hidalgo, non-
precedential decision at 5-6. Therefore, Hidalgo had until April 24, 2003, to
file a timely PCRA petition. Because Hidalgo filed the PCRA petition at issue
in 2015, it is untimely unless he has satisfied his burden of pleading and
proving that one of the enumerated exceptions applies. See Hernandez,
supra.In his first issue, Hidalgo asserts that the PCRA’s jurisdictional time-bar
“does not apply to stop his PCRA claim for violating the treaty requirement
because no state statute of limitations can impair a right arising under a Native
American treaty absent a specific congressional enactment to the contrary.”
Hidalgo’s Brief at 15.
The PCRA court found no merit to this claim because it found Hidalgo
had no standing to enforce the treaty in his criminal prosecution. The court
first discussed how a court should interpret an international treaty:
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In general, treaties do not create privately enforceable
rights. See Mora v. New York, 524 F.3d 183, 201 & n, 25
(2d Cir. 2008) (collecting cases from ten circuits holding
that there is a presumption that treaties do not create
privately enforceable rights in the absence of express
language to the contrary). Express language in a treaty
creating private rights can overcome this presumption. See
Mora, 524 F.3d at 188. International treaties establish
rights and obligations between States, and generally not
between States and individuals.
Furthermore, the United States Supreme Court has
plainly stated that, while the courts should give “respectful
consideration to the interpretation of an international treaty
. . . absent a clear and express statement to the contrary,
the procedural rules of the forum State govern the
implementation of the treaty in the state.” Commonwealth
v. Quaranibal, 763 A.2d 941 (Pa. Super.2000), citing
Berard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352,
1354, 140 L.Ed.2d. 529 (1998).
Indeed, the Supreme Court has specifically instructed
courts to exercise “great caution” when considering private
remedies for international law violations because of the risk
of “impinging on the discretion of the Legislative and
Executive Branches in managing foreign affairs.” Sosa v.
Alvarez-Machain, 542 U.S. 692, 727-728, 124 S.Ct. 2739,
159 L.Ed.2d 718 (2004). For these reasons, when
interpreting treaties, we generally look for a clear statement
of the intent of the treaty drafters.
PCRA Court Opinion, 3/2/21, at 8-9.
The PCRA court then applied the above standards to the treaties upon
which Hidalgo relied:
Here, there is no express language in either treaty
creating a private right in an individual to seek remedy for
breach. Additionally, [the PCRA court] does not read the
Stanwix and Harmar Treaties to limit the United States
authority to prosecute members of the Six Nations for
crimes committed within the jurisdiction of the United
States. We are unable to find any language limiting the
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jurisdiction of either the United States, or the Six Nations to
the crimes enumerated in “Separate Article” of the Harmar
Treaty. As stated above, in the absence of express language
in the treating manifesting the drafters’ intent for the list of
included crimes to be exhaustive, we cannot find said list to
limit the United States[’] jurisdiction. We must, as the
United States Supreme Court explained in Sosa, exercise
“great caution” or risk “impinging on the discretion of the
Legislative and Executive Branches in managing foreign
affairs.” Sosa, supra.
PCRA Court Opinion, 3/2/21, at 8.
Finally, the PCRA court determined that, even if it did not consider the
standing issue, Hidalgo’s jurisdictional claim lacked merit:
Were we to reach [Hidalgo’s] claim of error, we would
conclude that it is without merit. [Hidalgo’s] status as an
enrolled member of an Indian Nation does not exempt him
from the jurisdiction of state courts for crimes committed
outside reservation lands. See Nevada v. Hicks, 533 U.S.
353, 362 (2001) (stating that it is well settled that states
have criminal jurisdiction over reservation resides for crimes
committed off the reservation) (citing Mescalero Apache
Tribe v. Jones, 411 U.S. 145, 148-149, (1973)).
[Hidalgo’s] heroin trafficking occurred in and around Blair
County[,] Pennsylvania, which is outside any reservation
territory. Thus, Blair County had criminal jurisdiction in this
matter.
For the abovementioned reasons, [Hidalgo] is without
standing to assert a claim based on the Stanwix Treaty and
the Harmar Treaty. Even if [Hidalgo] did have a cognizable
right under these treaties, the procedural rules of the forum
state govern implementation of the treaty.
Id. at 10. Our review of pertinent case law and the certified record supports
the PCRA court’s conclusions.
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In arguing that the existence of the treaties1 preempts the PCRA’s time
bar, Hidalgo principally relies upon the U.S. Supreme Court’s decision in
Oneida County, New York v. Oneida Indian Nation of New York State,
105 S.Ct. 1245 (1985). Oneida involved common law actions brought by
Native Americans to enforce property rights. As part of its discussion, the
High Court, recognizing that there was no federal statute of limitations
governing federal common-law actions by Native Americans to enforce
property rights, held that the borrowing of state limitations period (such as
adverse possession and laches) would be inconsistent with the federal police
against the application of state statutes of limitations “with respect to Indian
land claims.” Oneida, 105 S.Ct. at 1255. Hidalgo cites no authority that
extends this holding in a criminal or post-conviction context.
Additionally, Hidalgo cites this Court’s decision in Commonwealth v.
Oliver, 128 A.3d 1275 (Pa. Super. 2015), for the proposition that
international treaty obligations are cognizable under the PCRA. See Hidalgo’s
Brief at 22. Hidalgo does not explain how, even though his claim is cognizable
under the PCRA, the time-bar of the same statute does not apply. Thus,
because Hidalgo has not convinced us that the treaty at issue vitiates the
PCRA’s time bar restriction, his first issue fails.
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1In his petition, Hidalgo relied upon the Fort Stanwix Treaty of 1784, and the
Fort Harmar Treaty of 1789. In his brief, Hidalgo refers to the 1794 Treaty of
Canandaigua. See Hidalgo’s Brief at 17 n.3.
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In his second issue, Hidalgo argues that, even if the PCRA applies, he
had pled and proved the “governmental interference” exception because the
Commonwealth failed to produce requested telephone intercepts in violation
of Brady v. Maryland, 373 U.S. 83 (1963). Although a Brady violation
might fall within the governmental interference exception to the PCRA’s time
bar, the statute nevertheless requires a petitioner to plead and prove: (1) the
failure to previously raise the claim was the result of interference by
government officials, and (2) the information on which he relies could not have
been obtained earlier with the exercise of due diligence. No Brady violation
occurs when the parties had equal access to the information or if the defendant
knew or could have uncovered such evidence with reasonable diligence.
Commonwealth v. Williams, 105 A.3d 1234 (Pa. Super. 2014).
Here, by his own admission, Hidalgo cannot establish due diligence. See
Hidalgo’s Brief at 13 (stating that trial counsel had asked for the intercepts
but that first PCRA counsel abandoned the claim in the subsequently amended
PCRA filed in 2003). Indeed, the PCRA court found that it “need not address
[Hidalgo’s] government interference claim because it was not brought within
one year of the date on which the claim could have been brought.” PCRA
Court Opinion, 3/2/21, at 6. We agree.
Our review of the record does not support Hidalgo’s claim that
“government officials have blocked disclosure of exculpatory materials and
have continued to do so, rending the governmental interference unceasing
and ongoing.” Hidalgo’s Brief at 23. Hidalgo knew about these recordings
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since 2000, as well as the Commonwealth’s alleged noncompliance, but did
not attempt to litigate the matter over the next fifteen years. Our review of
the record does not support Hidalgo’s assertion that he was “diligent and
persistent in seeking the intercepts and any transcripts of them.” Hidalgo’s
Brief at 29. Thus, Hidalgo’s Brady claim does not establish an exception to
the PCRA’s time bar. See, e.g., Commonwealth v. Stokes, 959 A.2d 306,
311, (Pa. 2008) (holding Brady claim of suppression of information in
government files could not negate PCRA’s time bar; such reasoning would
permit a PCRA petition to be filed at any time as long as the claim was couched
in terms of a Brady violation).
In sum, Hidalgo’s serial petition is subject to the time constraints of the
PCRA. Moreover, our review of the record supports the PCRA court’s
conclusion that it lacked jurisdiction to consider the serial petition because it
was untimely, and Hidalgo had not established a time-bar exception. We
therefore affirm the order denying him post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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