Com. v. Lopez, I. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ISMAEL LOPEZ, : No. 2649 EDA 2015
:
Appellant :
Appeal from the PCRA Order, August 28, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007646-2007
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 13, 2016
Ismael Lopez appeals from the August 28, 2015 order of the Court of
Common Pleas of Philadelphia County denying his first petition pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the
grounds that his petition was untimely. We affirm.
The PCRA court provided the following procedural history:
On June 11, 2008, following a jury trial before
this Court, [appellant] was convicted of possession
with intent to deliver a controlled substance and
criminal conspiracy.[Footnote 2] That same day, he
was sentenced to the mandatory minimum sentence
of not less than five nor more than ten years in
prison.[Footnote 3] At [appellant’s] request, his
sentence was stayed until July 3, 2008, so that
[appellant] could get his affairs in order.[Footnote 4]
When [appellant] failed to show up on July 3, a
bench warrant was issued. On July 9, 2008,
[appellant’s] sentence was vacated, and a new
sentence of ten to twenty years was imposed,
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consistent with [appellant’s] agreement. On
December 29, 2008, following a bench warrant
hearing, [appellant] was taken into custody to begin
serving his 10 to 20 year sentence.[Footnote 5]
[Footnote 2]: 35 Pa.C.S. § 780-113(a)(30),
18 Pa.C.S. § 903(a)(1).
[Footnote 3]: As to the charge of criminal
conspiracy, [appellant] was sentenced to a
term of not less than five, nor more than
ten years in prison, to run concurrently.
[Footnote 4]: At that time, this Court
discussed with [appellant] the
consequences of his failing to appear and,
after further discussion, [appellant] agreed
that if he failed to surrender on July 3,
2008, his sentence could be modified to ten
to twenty years in prison.
[Footnote 5]: By this time, the Court had
lost jurisdiction to modify the sentence
imposed on July 9, 2008. 42 Pa.C.S.
§ 5505.
On July 2, 2010, [appellant] filed an untimely
pro se petition pursuant to the Post-Conviction
Relief Act (PCRA). On March 2, 2011, PCRA counsel
was appointed, and filed a Finley[Footnote 7] letter
on June 10, 2011. On June 28, 2011, following an
independent review of the record, this Court notified
[appellant] of its intent to deny and dismiss his PCRA
petition without a hearing pursuant to Pa.R.Crim.P.
907 (907 Notice). [Appellant] responded to this
Court’s 907 Notice on July 18, 2011, alleging that
PCRA counsel was ineffective for failing to file an
amended petition asserting claims of: 1) newly
discovered evidence in the form of two witnesses,
and 2) governmental interference which caused
[appellant] to miss the PCRA filing deadline.
[Appellant’s] PCRA petition was nonetheless
dismissed as untimely on August 8, 2011, and
counsel’s request to withdraw was granted.
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[Footnote 7]: Commonwealth v. Finley,
550 A.2d 213 (Pa.Super. 1988)
[(en banc)].
On September 8, 2011, [appellant] filed a
timely notice of appeal to the Superior Court. This
Court filed an Opinion pursuant to Pa.R.A.P. 1925(a),
in which this Court advised the Superior Court that it
had erred in allowing counsel to withdraw without
ensuring that he had fully investigated [appellant’s]
belated newly discovered evidence and governmental
interference claims, and requested that the Superior
Court remand the case for further proceedings. On
December 7, 2012, the Superior Court agreed, and
vacated the dismissal of [appellant’s] PCRA petition,
remanding it to this Court for further proceedings
regarding the PCRA petition and appointment of new
counsel. On February 11, 2013, new counsel was
appointed, and filed an amended petition on
December 4, 2014. The Commonwealth filed a
motion to dismiss on March 18, 2015. PCRA counsel
responded to the Commonwealth’s motion to dismiss
on April 6, 2015. Having reviewed the record and all
filings, this Court sent [appellant] a 907 Notice on
April 17, 2015, indicating that it intended to dismiss
his petition as untimely. Thereafter, on August 28,
2015, [appellant’s] PCRA petition was dismissed
consistent with the 907 Notice. This timely appeal
followed.
PCRA court opinion, 12/15/15 at 1-3 (footnotes omitted).
Appellant raises the following issue for our review:
Did the trial court err in denying appellant an
evidentiary hearing when appellant raised material
issues of fact showing that he was abandoned by
counsel and was prevented by interference of
government officials, in this case the Department of
Corrections, from filing his PCRA petition within
13 months after the date of his judgment of
sentence and where the trial court agreed that the
appellant had a meritorious claim?
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Appellant’s brief at 2.
PCRA petitions are subject to the following standard of review:
“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, 609 Pa.
442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
A PCRA court’s credibility findings are to be accorded
great deference, and where supported by the record,
such determinations are binding on a reviewing
court. Id. at 305 (citations omitted). To obtain
PCRA relief, appellant must plead and prove by a
preponderance of the evidence: (1) his conviction or
sentence resulted from one or more of the errors
enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
claims have not been previously litigated or waived,
id. § 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[.]” Id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [appellant] could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [appellant] could have raised it but
failed to so before trial, at trial, . . . on appeal or in a
prior state postconviction proceeding.” Id.
§ 9544(b).
Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). Before we can
begin to address appellant’s issues on the merits, we must first determine if
we have jurisdiction to do so.
A PCRA petitioner has one year from the date his or her judgment of
sentence becomes final in which to file a PCRA petition. This court has held
the following regarding when a judgment becomes final:
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The plain language of the PCRA provides that a
judgment of sentence becomes final at the
conclusion of direct review or when the time for
seeking direct review expires. See 42 Pa.C.S.A.
§ 9545(b)(3). In fixing the date upon which a
judgment of sentence becomes final, the PCRA does
not refer to the conclusion of collateral review or the
time for appealing a collateral review determination.
Thus, the plain language of the PCRA statute shows
that a judgment of sentence becomes final
immediately upon expiration of the time for seeking
direct review, even if other collateral proceedings are
still ongoing. As this result is not absurd or
unreasonable, we may not look for further
manifestations of legislative intent. See
Commonwealth v. Hall, [80 A.3d 1204, 1211 (Pa.
2013)] (internal quotation marks omitted) (We may
“look beyond the plain language of the statute only
when words are unclear or ambiguous, or the plain
meaning would lead to a result that is absurd,
impossible of execution or unreasonable.”).
Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014). In
cases where the petitioner does not exercise his right to a direct appeal with
this court, the judgment of sentence becomes final 30 days after its entry by
the trial court.1 Pa.R.A.P. 903(a).
The PCRA enumerates several exceptions to its deadline for filing a
petition:
(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed
within one year of the date the judgment
becomes final, unless the petition alleges and
the petitioner proves that:
1
Because appellant was a fugitive from justice, and remained a fugitive from
justice, during the period in which a direct appeal could have been filed, he
forfeited his right to a direct appeal. Commonwealth v. Doty, 997 A.2d
1184, 1189 (Pa.Super. 2010).
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(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).
In the case sub judice, appellant forfeited his direct appeal rights;
therefore, his judgment of sentence became final on or about August 8,
2008. Accordingly, the deadline for appellant to file a timely PCRA petition
was August 10, 2009.2 Appellant did not file a PCRA petition until July 2,
2010--nearly one year after the deadline to file. We shall now determine if
appellant meets any of the time bar exceptions enumerated by the PCRA.
2
August 8, 2009, was a Saturday. Therefore, appellant’s filing deadline was
extended to the next business day, which was August 10, 2009. See
1 Pa.C.S.A. § 1908.
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Despite raising only one issue on appeal, appellant is claiming two
exceptions to the time bar. First, appellant claims that Gregory J. Pagano,
Esq., his initial privately retained PCRA counsel, had “abandoned” him by
“not informing [appellant] of counsel’s conclusions [that there were no
issues of merit in appellant’s case] until after the jurisdiction of the trial
court under [the] PCRA had lapsed.” (Appellant’s brief at 8.) Second,
appellant avers that because he was transferred to different correctional
institutions by the Department of Corrections, he was unable to timely file a
pro se PCRA petition due to his inability to utilize the prison law libraries or
law clinics. (Id. at 8-9.)
We shall first address appellant’s ineffective assistance of counsel
claim as it relates to Attorney Pagano. Our cases explicitly state that
“[a]llegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Fowler, 930 A.2d 586, 591 (Pa.Super. 2007), appeal denied, 944 A.2d
756 (Pa. 2008), quoting Commonwealth v. Pollard, 911 A.2d 1005, 1008
(Pa.Super. 2006); Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.
2005). We, therefore, do not have jurisdiction to consider appellant’s
untimely petition on the grounds of ineffective assistance of PCRA counsel.
We shall next address appellant’s claim of governmental interference.
Here, appellant avers that he was “moved by the Department of Corrections
[] of the Commonwealth of Pennsylvania [six] times from January 2009 to
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[June 28, 2010] to [six] different prisons and was unable because of this to
timely file a pro se PCRA Petition . . . .” (Appellant’s brief at 8
(capitalization omitted).)
In order to meet the statutory requirements of the
“governmental interference” exception to the PCRA’s
one year jurisdictional time-bar, Appellant was
required to plead and prove that his “failure to raise
the claim [or claims] previously was the result of
interference by government officials with the
presentation of the claim [or claims] in violation of
the Constitution or laws of this Commonwealth or the
Constitution or laws of the United States . . . .”
Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006), quoting
42 Pa.C.S.A. § 9545(b)(1)(i) (emphasis omitted).
In the instant appeal, appellant’s entire argument regarding
governmental interference is as follows:
In this case [appellant] was unable to secure use of
the prison law libraries or law clinics to file a PCRA
Petition because he was moved around so many
times by the [Department of Corrections] which
prevented him [a]long with the abandonment by
counsel from filing his pro se PCRA petition until
[June 28, 2010. Appellant] filed his pro se PCRA
Petition within 60 days of being able to do so.
Appellant’s brief at 9 (citation omitted). At no point does appellant allege
that either a law of the Commonwealth or United States, or the Constitutions
of the Commonwealth or the United States were violated as the result of the
Department of Corrections’ transferring of appellant to different facilities. In
Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010), the Pennsylvania
Supreme Court addressed a similar claim, stating:
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Further, appellant claims the restricted incarceration
status of capital inmates, including himself,
constitutes governmental interference because such
restricted status limits the ability of such inmates to
prepare pro se PCRA petitions. Appellant fails to
show any of the conditions of his incarceration were
illegal, as required to meet the governmental
interference exception to PCRA’s timeliness
requirement. See 42 Pa.C.S. § 9545(b)(1)(i)
(governmental interference must violate United
States or Pennsylvania Constitution or laws).
Accordingly, appellant has not sufficiently developed
his claim of governmental interference. See
Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d
267, 293-94 (2008) (failure to develop claim waives
it).
Id. at 1095. Accordingly, we find that appellant has not sufficiently pled
that the government interfered with his ability to timely file his petition
pursuant to the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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