Com. v. Vasquez, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN VASQUEZ :
:
Appellant : No. 1237 MDA 2020
Appeal from the PCRA Order Entered August 21, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000962-2015
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: AUGUST 19, 2021
Brian Vasquez appeals from the order, entered in the Court of Common
Pleas of Dauphin County, dismissing as untimely his petition filed pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we affirm.
The PCRA court set forth the history of this case as follows:
On February 12, 2018, [Vasquez pled] guilty to indecent assault[,
18 Pa.C.S.A. § 3126(a)(1)] and corruption of minors[, 18
Pa.C.S.A. § 6301(a)(1)(ii). T]he remaining charges were
withdrawn by the Commonwealth as part of a negotiated plea
agreement. Sentencing was deferred to April 16, 2018[,] for an
evidence-based presentence risk assessment. On March 5, 2018,
[Vasquez pled] guilty to [accidents involving damage to attended
vehicle, failure to stop and render aid, and driving without a
license] at docket number CP-22-CR-003714-2017. Sentencing
was deferred [one day] to April [17, 2018,] to be consolidated
with the instant docket.
[I]mmediately prior to the scheduled sentencing, [Vasquez pled]
guilty to [possession of drug paraphernalia, driving without a
license, and three counts of driving under the influence] at docket
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number CP-22-CR-0005473-2017. [Vasquez] was sentenced at
the instant docket to an aggregate term of three (3) to twenty-
three (23) months in Dauphin County Prison, followed by five (5)
years of county probation. Based on the convictions, [Vasquez]
is required to register as a Tier 1 sexual offender pursuant to the
Sexual Offenders Registration and Notification Act (“SORNA”), 18
Pa.C.S.A. § 9799.10 et. seq. Time credit was applied from
January 5, 2018 through March 5, 2018[,] and December 5[,
2014] through [December] 19, 2014. [Vasquez] was granted
immediate parole.
[Vasquez]’s parole was revoked at Count 2 (indecent assault) and
his probation revoked at Count 5 (corruption of minors) on July
15, 2019[,] for violating conditions of his parole. He was
resent[enc]ed to serve his back time of seventeen (17) months,
eighteen (18) days, followed by five (5) years of probation at
Count 5 (corruption of minors). He was eligible for immediate
parole upon an approved address. On December 9, 2019,
[Vasquez]’s parole was again revoked at Count 2 (indecent
assault) and he was resentenced to serve his back time of fifteen
(15) months, twenty (20) days, [and the court deemed him to be]
work release eligible. At Count 5, [Vasquez] was [] resentenced
to five (5) years of probation consecutive to Count 2.
On January 3, 2020, [Vasquez] filed a pro se [“]motion [for] writ[]
of habeas corpus[.”] In his motion, [which the court treated as a
PCRA petition, Vasquez] claimed ineffective assistance of counsel
for coercing him into entering a plea of guilty, as well as
challenging the validity of his guilty plea on February 12, 2018.
Th[e PCRA c]ourt appointed Aaron Holt, Esquire[,] as PCRA
counsel. On June 11, 2020[,] Attorney Holt filed a [“no-merit”
letter pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa.1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc)].
Trial Court Opinion, 7/13/20, at 1-3 (unnecessary capitalization omitted).
On July 13, 2020, the PCRA court issued its Pa.R.Crim.P 907 notice of
intent to dismiss Vasquez’s petition without a hearing and granted Attorney
Holt’s motion to withdraw. On August 19, 2020, the PCRA court dismissed
Vasquez’s petition as untimely, and on September 16, 2020, Vasquez timely
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filed his pro se notice of appeal to this Court.1 Vasquez raises the following
issues for our review:
1. Did the PCRA court abuse[] its discretion [by] dismiss[ing
Vasquez’s petition] where it had jurisdiction to address the
merits of the PCRA petition?
2. Was PCRA counsel ineffective for failing to thoroughly review
the [] record pursuant to [Turner and Finley]?
3. Was PCRA counsel ineffective for failing to act with due
diligence when as[s]erting that the petition was untimely and
without merit although [the] petition has merit, and the court
has jurisdiction to hear its claims?
4. Did the PCRA/trial judge abuse its discretion for not recusing
himself knowing that he [h]as a conflict of interest?
5. Was [] PCRA counsel ineffective for failing to address [that] he
[h]as a conflict of interest in the immediate case?
Brief of Appellant, at 11-12.
When reviewing the denial of a PCRA petition, we must determine
whether the PCRA court’s order is supported by the record and free of legal
error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).
We are bound by a PCRA court’s credibility determinations, but with regard to
a court’s legal conclusions, we apply a de novo standard. Id. Before reaching
the issues that Vasquez raises in his appellate brief, however, we must first
ascertain whether the PCRA court correctly determined that his PCRA petition
was untimely filed. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.
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1 On September 25, 2020, Vasquez filed a pro se petition for immediate work
release, which the trial court denied by order dated October 6, 2020.
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2000) (PCRA time limit is jurisdictional; court may only review untimely
petition if statutory exception applies).
Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment of sentence becomes final unless the petitioner
alleges, and proves, an exception to the time for filing the petition, set forth
at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii). 2 A PCRA petition invoking
one of these statutory exceptions must be filed within one year from the date
the claim arises. See id. at § 9545(b)(2).3 Under the PCRA, a judgment of
sentence becomes final “at the conclusion of direct review, including
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2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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), (ii), and (iii).
3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. Here, Vasquez raises claims of ineffective
assistance of counsel resulting in an invalid guilty plea entered on February
12, 2018. Therefore, the one-year deadline applies.
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discretionary review in the Supreme Court of the United States and the
Supreme of Pennsylvania, or at the expiration of time for seeking the review.”
Id. at § 9545(b)(3). “When a PCRA [petition] is not filed within one year of
the expiration of direct review, or not eligible for one of the exceptions, the
[PCRA] court has no power to address the substantive merits of a petitioner’s
PCRA claims.” Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super.
2017).
Instantly, Vasquez’s judgment of sentence became final on May 17,
2018, at the expiration of time for seeking review with this Court. See 42
Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, Vasquez had until May
17, 2019, to timely file his PCRA petition. The instant petition, filed on January
3, 2020, is patently untimely. In order to review the substantive merits of his
petition, Vasquez must plead and prove one of the three timeliness exceptions
to the PCRA.
Vasquez first asserts that his petition is timely under the newly-
discovered facts exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(ii). This
exception “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) [those facts] could not have been
ascertained by the exercise of due diligence.” Commonwealth v. Bennett,
930 A.2d 1264, 1272 (Pa. 2007); 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence
requires a petitioner to take reasonable efforts to uncover facts that may
support a claim for collateral relief. Commonwealth v. Burton, 121 A.3d
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1063, 1071 (Pa. Super. 2015) (en banc). A petitioner must explain why he
could not have learned the new fact(s) earlier by exercising due diligence.
Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). 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, 947 A.2d 714, 720 (Pa. 2008).
Specifically, in his pro se PCRA petition, Vasquez argued the applicability
of section 9545(b)(1)(ii) because, upon performing legal research on a prison-
issued tablet, he “found that [his] constitutional rights . . . were not asserted
[with] due diligence.” Pro Se PCRA Petition, 12/27/19, at 3. In his appellate
brief, Vasquez explains that he discovered “two recent cases [in which] the
Supreme Court of Pennsylvania has indicated that PCRA petitioners can raise
claims of ‘per se’ ineffectiveness of trial counsel [as a newly-discovered fact].”
Brief of Appellant, at 27 (citing Commonwealth v. Rosado, 150 A.3d 425(Pa. 2016) and Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018)).4
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4 See Rosado, supra at 428-29 (filing of appellate brief that abandons all
preserved issues in favor of unpreserved issues constitutes per se
ineffectiveness and warrants remand for merits review; Court must distinguish
between errors which completely foreclose appellate review, which constitute
ineffectiveness per se, and those that only partially foreclose such review,
which are subject to four-part analysis in Strickland v. Washington, 466
U.S. 668 (1984) (emphasis in original)); see also Peterson, supra at 1130-
31 (where counsel filed PCRA petition one day late, precluding any merits or
appellate review of petitioner’s claims, and PCRA court made factual findings
that petitioner neither knew of counsel’s failure nor could have discovered it
through reasonable diligence, section 9545(b)(1)(ii) permitted filing of PCRA
petition beyond one-year time bar based on per se ineffectiveness; “the
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It is well-settled that “decisional law does not amount to a new ‘fact’
under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23
A.3d 980, 987 (Pa. 2011). Vasquez does not allege that he discovered any
new facts about his case; he merely argues that he discovered case law
suggesting certain petitioners may file a PCRA petition beyond the one-year
time bar based on counsel’s acts or omissions. We note, however, that the
circumstances of this case are readily distinguishable from Rosado and
Peterson where, here, unlike those cases, PCRA counsel did not commit a
procedural misstep of which Vasquez was unaware that completely precluded
review of his claims. Therefore, Rosado and Peterson are inapplicable, see
supra at n.3, and the PCRA court properly determined that Vasquez failed to
satisfy the newly-discovered fact exception to the PCRA’s time bar.5
Lastly, Vasquez alleges his PCRA petition is timely under the
governmental interference exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(i).
In his pro se PCRA petition, Vasquez claimed that:
Probation officers told me [a] one way ticket back to Dauphin
County Prison was sending anything to the judge[.] I was told
[at] my revo[cation hearing] that I had a time limit[, s]o I asked
[probation officers] for the address to the courthouse to send a
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principle . . . that PCRA counsel’s ineffectiveness cannot be advanced as a
newly-discovered “fact” for purposes of . . . subsection 9545(b)(1)(ii) . . . has
no application in cases where PCRA counsel’s ineffectiveness per se completely
forecloses review of collateral claims.”)).
5 Vasquez concedes that “a claim that counsel was ineffective will not save an
untimely PCRA petition.” Brief of Appellant, at 19, quoting Commonwealth
v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).
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“PCRA” [petition]. I was scared of being sent back to [prison,] so
I left it alone.
Pro Se PCRA Petition, 12/27/19, at 3.
Here, even if Vasquez’s claim possessed substantive merit, he has failed
to show how this interaction with probation officers resulted in any violation
of the United States or Pennsylvania Constitutions or laws. Brief of Appellant,
at 87-108; see also 42 Pa.C.S.A. § 9545(b)(1)(i) (governmental interference
must violate United States or Pennsylvania Constitution or laws);
Commonwealth v. Puskar, 951 A.2d 267, 293 (Pa. 2008) (appellant fails to
satisfy governmental interference exception by failing to show conditions
complained of were illegal). Furthermore, we agree with the PCRA court that
where, as here, Vasquez admits in his pro se PCRA petition that he was aware
of the PCRA’s time bar when he spoke with the probation officers, see Pro Se
PCRA Petition, 12/27/19, at 3, he has failed to offer “a reasonable explanation
why, with the exercise of due diligence, he did not ascertain this alleged
interference of government officials earlier and seek redress.”6 See
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6 Vasquez notes that he reached out to the Public Defender’s office to discuss
withdrawal of his guilty plea and the filing of a Rule 600 motion. See Brief of
Appellant, at 89. However, there is no indication that he reached out to his
family, to the Public Defender’s Office, or to any attorney regarding the
probation officer’s alleged misstatement of his appellate rights. See Rizvi,
supra at 349 (appellant failed to satisfy governmental interference exception
to PCRA’s time bar where he allowed one year to lapse before inquiring
seriously about collateral appeal rights, never informed Department of
Corrections personnel about any obstacles preventing him from understanding
his appellate rights, and never attempted to contact family, friends, or lawyer
to ask about any appellate rights at his disposal).
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Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017) (emphasis
added).
Because Vasquez has failed to plead and prove any exception to the
PCRA’s time bar, the PCRA court did not have jurisdiction to consider his
untimely PCRA petition. Murray, supra. Thus, the PCRA court correctly
dismissed his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/19/2021
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