Com. v. Martinez, N. ( 2021 )

J-S13021-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ :
:
Appellant : No. 594 EDA 2020
Appeal from the PCRA Order Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002773-2011,
CP-51-CR-0002774-2011, CP-51-CR-0002775-2011,
CP-51-CR-0002804-2011, CP-51-CR-0011128-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ :
:
Appellant : No. 595 EDA 2020
Appeal from the PCRA Order Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002773-2011,
CP-51-CR-0002774-2011, CP-51-CR-0002775-2011,
CP-51-CR-0002804-2011, CP-51-CR-0011128-2011
J-S13021-21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ :
:
Appellant : No. 596 EDA 2020
Appeal from the PCRA Order Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002773-2011,
CP-51-CR-0002774-2011, CP-51-CR-0002775-2011,
CP-51-CR-0002804-2011, CP-51-CR-0011128-2011
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ :
:
Appellant : No. 597 EDA 2020
Appeal from the PCRA Order Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002773-2011,
CP-51-CR-0002774-2011, CP-51-CR-0002775-2011,
CP-51-CR-0002804-2011, CP-51-CR-0011128-2011
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J-S13021-21
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NASUIL MARTINEZ :
:
Appellant : No. 598 EDA 2020
Appeal from the PCRA Order Entered February 6, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002773-2011,
CP-51-CR-0002774-2011, CP-51-CR-0002775-2011,
CP-51-CR-0002804-2011, CP-51-CR-0011128-2011
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: Filed: June 10, 2021
Appellant, Nasuil Martinez, appeals from the order entered in the
Philadelphia County Court of Common Pleas, denying his first petition brought
pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
The relevant facts and procedural history of this case are as follows:
On November 6, 2013, following a three-day non-jury trial
before this [c]ourt, [Appellant] was convicted [at multiple
dockets] of one count of first-degree murder (18 Pa.C.S. §
2502), four counts of attempted murder (18 Pa.C.S. § 901),
four counts of aggravated assault of a protected class
member (18 Pa.C.S. § 2702), four counts of assault of a law
enforcement officer (18 Pa.C.S. § 2702.1), one count of
theft of a handgun (18 Pa.C.S. § 3921), one count of
robbery (18 Pa.C.S. § 3701), and one count of possessing
an instrument of crime (18 Pa.C.S. § 907). On February 28,
2014, the [c]ourt imposed an aggregate sentence of life plus
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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80 to 160 years’ incarceration in state prison. [Appellant]
filed post-sentence motions, which the [c]ourt denied on
May 27, 2014. On March 9, 2015, the Superior Court
affirmed [Appellant]’s judgment of sentence.
[Subsequently, Appellant wrote a letter to his appellate
counsel and left a voicemail requesting that counsel file a
petition for allowance of appeal with our Supreme Court.
Appellant received a letter dated April 15, 2015, informing
him that his messages had been forwarded to counsel and
that Appellant was in “good hands.” Appellant was further
instructed to call again in two weeks if he did not hear back
from counsel during that time. Nonetheless, no petition for
allowance of appeal was filed.
Nearly four years later, on January 15, 2019, Appellant
wrote a letter to the Supreme Court prothonotary’s office
inquiring as to the status of his appeal. Appellant received
a letter in response on January 23, 2019, informing him that
no appeals or petitions had been filed on his behalf.]
[Appellant] filed a pro se petition under the [PCRA] on
February 1, 2019[, alleging that counsel rendered
ineffective assistance in failing to appeal to the Supreme
Court as Appellant had requested]. On April 29, 2019, the
[c]ourt appointed Coley Reynolds, Esquire, to represent
[Appellant]. On May 31, 2019, pursuant to
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.
1988), Mr. Reynolds filed a motion to withdraw as counsel
and a letter stating there was no merit to [Appellant]’s claim
for relief. On June 27, 2019, the [c]ourt found the Finley
letter to be insufficient, and directed counsel to further
review the case. Mr. Reynolds then filed an amended
petition on September 17, 2019 (“Amended Petition”), and
a supplemental amended petition on November 21, 2019
(“Supplemental Amended Petition”). On December 17,
2019, the Commonwealth submitted a letter brief in
response to [Appellant]’s submissions (collectively
hereafter, “PCRA petition”). On December 19, 2019, after
considering filings from both parties, the [c]ourt issued
notice pursuant to [Pa.R.Crim.P.] 907 of its intent to dismiss
[Appellant]’s PCRA petition as untimely. [Appellant]
submitted a pro se response on January 8, 2020. On
February 6, 2020, the [c]ourt dismissed [Appellant]’s PCRA
petition without a hearing.
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(PCRA Court Opinion, filed June 9, 2020, at 1-2) (internal citation omitted).
Appellant timely filed notices of appeal at each underlying docket on February
12, 2020.2 The court ordered Appellant on February 13, 2020, to file concise
statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied on March 2, 2020. This Court consolidated Appellant’s
appeals sua sponte on March 27, 2020.
Appellant raises one issue on appeal:
Did the PCRA court err by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging that
counsel was ineffective for failing to file a petition for
allowance of appeal to the Pennsylvania Supreme Court?
(Appellant’s Brief at 5).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 359, 956 A.2d 978, 983
(2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).
A PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final “at the conclusion of direct review,
____________________________________________
2 Appellant listed all five underlying docket numbers on each notice of appeal,
in violation of Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019).
Nevertheless, this Court has recently overruled Creese to the extent that it
required the Superior Court to quash appeals when an appellant files multiple
notices of appeal and each notice of appeal lists all of the underlying docket
numbers. See Commonwealth v. Johnson, 236 A.3d 1141 (Pa.Super.
2020) (en banc), appeal denied, ___ Pa. ___, 242 A.3d 304 (2020). Thus,
Appellant’s notices of appeal are properly before us.
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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.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition
must allege and the petitioner must prove:
(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)(i)-(iii). Additionally, a PCRA petitioner must
present his claimed exception within the requisite statutory window. 42
Pa.C.S.A. § 9545(b)(2).
The timeliness exception set forth in Section 9545(b)(1)(ii) requires a
petitioner to demonstrate he did not know the facts upon which he based his
petition and could not have learned those facts earlier by the exercise of due
diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
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1271 (2007). Due diligence demands that the petitioner take reasonable
steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,
1168 (Pa.Super. 2001). A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323, 330-31, 781 A.2d 94, 98
(2001); Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super 2010),
appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This rule is strictly
enforced. Id. Additionally, the focus of this exception “is on the newly
discovered facts, not on a newly discovered or newly willing source for
previously known facts.” Commonwealth v. Marshall, 596 Pa. 587, 596,
947 A.2d 714, 720 (2008) (emphasis in original). In other words, the “new
facts” exception at:
[S]ubsection (b)(1)(ii) has two components, which must be
alleged and proved. Namely, the petitioner must establish
that: 1) the facts upon which the claim was predicated were
unknown and 2) could not have been ascertained by the
exercise of due diligence. If the petitioner alleges and
proves these two components, then the PCRA court has
jurisdiction over the claim under this subsection.
Bennett, supra at 395, 930 A.2d at 1272 (internal citations omitted)
(emphasis in original).
A common allegation of ineffective assistance of counsel, even if cast in
the language of a statutory exception, does not generally establish jurisdiction
over an otherwise untimely PCRA petition. Commonwealth v. Gamboa-
Taylor, 562 Pa. 70, 80, 753 A.2d 780, 785 (2000). In rare instances,
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however, the law will allow a petitioner to proceed with a second, albeit
untimely, PCRA petition, where a petitioner timely asserts the “newly-
discovered facts exception” under 42 Pa.C.S.A. § 9545(b)(1)(ii), claiming
specific abandonment of counsel on a prior appeal. See Bennett, supra at
399-400, 930 A.2d at 1274. In such a scenario, however, a petitioner must
still “prove that the facts were ‘unknown’ to him and that he could not uncover
them with the exercise of ‘due diligence.’” Id.Instantly, the court sentenced Appellant on February 28, 2014. On
March 9, 2015, this Court affirmed the judgment of sentence. No petition for
allowance of appeal was filed. Consequently, Appellant’s judgment of
sentence became final on April 8, 2015, upon the expiration of the 30-day
period to file a petition for allowance of appeal with the Pennsylvania Supreme
Court. See Pa.R.A.P. 1113(a). Appellant filed the current petition on February
1, 2019, almost four years after his judgment of sentence became final; thus,
the petition is facially untimely.
Appellant now attempts to invoke the “newly-discovered facts”
exception to the PCRA time-bar.3 Specifically, Appellant contends that
appellate counsel rendered ineffective assistance where counsel failed to file
a petition for allowance of appeal with the Pennsylvania Supreme Court,
____________________________________________
3 Although Appellant mentioned the “new constitutional right” timeliness
exception at Section 9545(b)(1)(iii) in his memorandum of law in support of
his amended PCRA petition, the arguments he advanced in his pro se PCRA
petition and on appeal pertain to the “newly-discovered facts” exception.
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despite Appellant’s request for counsel to do so. While Appellant’s allegation
arguably brings his claim within the narrow ambit of Section 9545(b)(1)(ii) as
discussed in Bennett, supra, he must still prove that he met the
requirements therein, namely that the facts were “unknown” to him and that
he could not have uncovered them sooner with the exercise of “due diligence.”
See id. See also 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant, however, has
failed to do so.
In denying Appellant’s petition, the PCRA court addressed Appellant’s
claim as follows:
[Appellant] alleges that he did not discover that his counsel
had failed to seek review in the Supreme Court until January
23, 2019, when he received a letter from the [Supreme]
Court, informing him that no allocator petition had been filed
on his behalf. He argues that because he filed his PCRA
petition on February 1, 2019, well before sixty days after
hearing from the [Supreme] Court, and because he acted
with due diligence, his petition should be deemed to be
timely filed.
In support of his argument that he acted with due diligence,
[Appellant] avers the following in his PCRA Amended
Petition. He states that following the Superior Court’s
decision, [Appellant]’s counsel, Karl Baker, Esquire, of the
Defender’s Association, sent [Appellant] a letter stating that
the Superior Court had affirmed his conviction. In that
letter, Mr. Baker stated that it was not his intention to
petition the Supreme Court for review because there was no
likelihood of obtaining review or relief in that [C]ourt.
Further, counsel told [Appellant] that if [Appellant] still
wished to file a petition in the Supreme Court, he should
contact Mr. Baker within the thirty-day period running from
the date of the Superior Court’s decision. [Appellant]
contends that he thereafter wrote to counsel directing him
to file for review in the Supreme Court. [Appellant] states
that he also followed up with a phone call to the Defender’s
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Association, leaving a voicemail message inquiring about
the status of his appeal. On April [1]5, 2015, he received a
letter from a staff member of the Defender’s Association
stating that his voicemail would be passed on to Mr. Baker,
that [Appellant] was in “good hands,” and to follow up if he
still didn’t hear back within a week or two. [Appellant]
alleges he did not receive any further correspondence until
after he wrote to the [Supreme] Court on January 15, 2019,
more than three-and-one-half years later, to inquire about
the status of his appeal. As stated above, on January 23,
2019, [Appellant] received a letter from the [Supreme]
Court, informing him that no appeals or petitions had been
filed on his behalf,…and on February 1, 2019, [Appellant]
filed his pro se PCRA petition.
[Appellant] argues that because he reached out to the
Defender’s Association and was told that he was in “good
hands,” [Appellant] reasonably believed that counsel was
pursuing his appeal during that time. However, [Appellant]
did not follow up with the Defender’s Association, despite
being explicitly instructed, in writing, to do so if he did not
hear back in a week or two. Further, [Appellant] made no
efforts to inquire as to the status of his appeal until almost
four years later. Under these circumstances, it is clear that
[Appellant]’s averments fail to establish that he exercised
due diligence regarding the status of his petition for
allowance of appeal.
(PCRA Court Opinion at 5-6) (internal citations omitted). We agree with the
PCRA court’s analysis.
Here, Appellant’s judgment of sentence became final in 2015. Although
Appellant requested that counsel file a petition for allowance of appeal,
Appellant failed to inquire as to the status of his appeal for nearly four years
before he wrote to the Supreme Court prothonotary in 2019. Appellant fails
to explain why he could not have contacted the Supreme Court or appellate
counsel at any point during those four years to discover whether counsel had
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filed a petition for allowance of appeal on Appellant’s behalf. See, e.g.,
Commonwealth v. Scott, 2021 WL 630987 (Pa.Super. filed Feb. 18, 2021)
(unpublished memorandum) (determining counsel’s per se ineffectiveness for
failure to file timely petition for allowance of appeal may constitute newly-
discovered fact under Section 9545(b)(1)(ii); concluding, nevertheless, that
petitioner failed to plead and prove that he was unaware of status and
procedural posture of his appeal or that he could not have discovered counsel’s
failure to file timely petition earlier through exercise of due diligence).4
Accordingly, as Appellant failed to establish the requirements of Section
9545(b)(1)(ii), we affirm the order dismissing Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/21
____________________________________________
4 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions
of Superior Court filed after May 1, 2019, may be cited for persuasive value).
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