Com. v. Rodriguez, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EFRAIN RODRIGUEZ :
:
Appellant : No. 1141 MDA 2017
Appeal from the PCRA Order July 3, 2017
In the Court of Common Pleas of Lebanon County Criminal Division at No(s):
CP-38-CR-0001762-2013
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 04, 2018
Efrain Rodriguez (Appellant) appeals pro se from the order denying his
first Post Conviction Relief Act1 (“PCRA”) petition because it was untimely filed.
We affirm.
On July 24, 2014, Appellant entered a negotiated guilty plea to one
count each of aggravated indecent assault of a complainant less than 16 years
old, aggravated indecent assault of a child, and endangering the welfare of a
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* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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child,2 and two counts each of indecent assault and corruption of minors.3 On
November 19, 2014, the trial court sentenced Appellant to an aggregate term
of 5 to 15 years’ imprisonment. Appellant did not file a direct appeal.
On August 22, 2016, Appellant filed a pro se PCRA petition, asserting,
without further explanation, that: (1) he pled to charges that did not exist at
the time he committed the offenses; and (2) the facts upon which his claim
was predicated were unknown to him and could not have been ascertained by
due diligence. The Commonwealth filed a response, arguing that Appellant’s
petition was untimely filed. See 42 Pa.C.S.A. § 9545(b)(1).
The PCRA court appointed Greer H. Anderson, Esquire to represent
Appellant. Attorney Anderson filed a Turner/Finley4 petition to withdraw,
explaining that on March 18 and April 11, 2016, Appellant requested from the
trial court copies of the police discovery, the affidavit of probable cause, and
victim statements. Counsel’s petition clarified that Appellant’s August 22,
2016, pro se PCRA claim was that after review of these documents, Appellant
learned he was sentenced under criminal statutes that, while in effect at the
time of his sentencing in 2014, were not in effect when the offenses were
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2 18 Pa.C.S.A. §§ 3125(a)(8), (b), 4304(a)(1).
3 18 Pa.C.S.A. §§ 3126(a)(8), 6301(a)(1)(ii). The parties agreed to a
minimum sentence of 5 years’ imprisonment and agreed to have the trial court
set the maximum sentence.
4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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committed. Counsel further explained that Appellant intended to argue that
his plea counsel was ineffective for not objecting to the trial court’s failure to
sentence him according to the earlier statutes. Counsel concluded, however,
that Appellant’s petition was untimely filed. Appellant filed a response to
Attorney Anderson’s petition to withdraw, reiterating that he was entitled to
relief because he exercised reasonable due diligence to obtain the information
which showed the trial court imposed an illegal sentence.
The PCRA court granted Attorney Anderson’s petition to withdraw and
issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition
without a hearing. Appellant filed a pro se response. On July 3, 2017, the
court dismissed the petition, reasoning that the petition was filed beyond the
PCRA’s general one-year filing period and Appellant did not qualify for the
“newly-discovered” exception because: (1) “all the information upon which
[he] relie[d]” was provided to him prior to the entry of his guilty plea; (2) the
information “was a matter of public record and [would have been] available
to him through a timely search conducted within the one-year time period;”5
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5 The PCRA court noted our Supreme Court’s recent decision in
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), which held:
[T]he presumption that information which is of public record
cannot be deemed “unknown” for purposes of subsection
9545(b)(1)(ii) does not apply to pro se prisoner petitioners. . . .
Accordingly, consistent with the statutory language, in
determining whether a petitioner qualifies for the exception to the
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and (3) Appellant provided no explanation why he was unable to conduct his
investigation within the one-year filing period. PCRA Court Opinion at 8,
citing 42 Pa.C.S.A. § 9545(b)(1)(ii).
Appellant took a timely pro se appeal and complied with the court’s order
to file a Pa.R.A.P. 1925(b) statement. He presents two issues for our review:
(1) Did the PCRA Court err in dismissing Appellant’s first PCRA
petition as untimely pursuant to [42] PA.C.S.[A. §] 9545, when
Appellant properly presented timeliness exceptions with PCRA
counsel and with the lower court prior to counsel’s withdrawal?
(2) Did the PCRA Court err in denying Appellant an evidentiary
hearing on the matter?
Appellant’s Brief at 2. The argument section of Appellant’s brief, however, is
organized under two headings: “Timeliness of Petition” and “Illegal
Sentence.” Id. at 9, 14.
In his first issue, Appellant asserts that his PCRA petition was timely
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PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii),
the PCRA court must first determine whether “the facts upon
which the claim is predicated were unknown to the petitioner.” In
some cases, this may require a hearing. After the PCRA court
makes a determination as to the petitioner’s knowledge, it should
then proceed to consider whether, if the facts were unknown to
the petitioner, the facts could have been ascertained by the
exercise of due diligence, including an assessment of the
petitioner’s access to public records.
See Burton, 158 A.3d at 638 (emphasis added). The PCRA court held
that Burton did not apply to Appellant in this case because the
information upon which Appellant relied was provided to him prior to his
guilty plea and would have been available to him after sentencing
through a timely search.
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under Section 9545(b)(1)(ii). He contends that in his response to Attorney
Anderson’s Turner/Finley petition, he set forth a detailed discussion of his
“due diligence, including dates, times, and [the] specific course of research he
personally engaged in” to obtain the new information, and that this discussion
explained his delay in filing a PCRA petition. Appellant’s Brief at 11, 14.
Appellant further claims Attorney Anderson was ineffective for failing to
include this information in his Turner/Finley petition. Appellant also refutes,
without further explanation, the PCRA court’s finding that the information he
obtained would have been available to him through a timely search. Finally,
Appellant maintains that he filed his petition within 60 days of learning of the
new information. He requests an evidentiary hearing to determine whether
he is entitled to relief under Burton.
“The standard of review for an order denying post-conviction relief is
limited to whether the record supports the PCRA court’s determination, and
whether that decision is free of legal error.” Commonwealth v. Walters,
135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).
It is well-established that “the PCRA’s timeliness requirements are
jurisdictional in nature and must be strictly construed; courts may
not address the merits of the issues raised in a petition if it is not
timely filed.” Generally, a PCRA petition must be filed within one
year of the date the judgment of sentence becomes final unless
the petitioner meets his burden to plead and prove one of the
exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii),
which include . . . the discovery of previously unknown facts or
evidence that would have supported a claim . . . . 42 Pa.C.S.A. §
9545(b)(1)[(ii)]. [A] petition invoking any of the exceptions must
be filed within 60 days of the date the claim first could have been
presented. ... 42 Pa.C.S.A. § 9545(b)(2)[.]
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Id. at 591-92 (some citations omitted) (emphasis added). “The PCRA court
has the discretion to dismiss a petition without a hearing when the court is
satisfied ‘that there are no genuine issues concerning any material fact, the
defendant is not entitled to post-conviction collateral relief, and no legitimate
purpose would be served by further proceedings.’” Commonwealth v.
Roney, 79 A.3d 595, 604 (Pa. 2013).
Appellant was sentenced on November 19, 2014, and he did not file a
direct appeal. Thus, his judgment of sentence became final on the day his
time for taking an appeal concluded, December 19, 2014. See 42 Pa.C.S.A.
§ 9545(b)(3) (judgment becomes final at conclusion of direct review or at
expiration of time for seeking review); Pa.R.A.P. 903(a) (appeal shall be filed
within 30 days of entry of order). Appellant had one year, until Monday,
December 22, 2015, to file a PCRA petition. See 1 Pa.C.S.A. § 1908 (when
last day of any period of time referred to in any statute falls on Saturday,
Sunday, or legal holiday, such day shall be omitted from computation); 42
Pa.C.S.A. § 9545(b)(1). The instant petition was filed eight months later, on
August 22, 2016.
Appellant does not dispute the PCRA court’s observation that the
information upon which his PCRA petition was based — his criminal
information, the affidavit of probable cause, certain discovery, and the victim’s
statements — were provided to or available to him before he pled guilty.
Accordingly, Appellant cannot — and he does not — explain which facts “were
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unknown to” him, as required by the newly-discovered evidence exception at
Subsection 9545(b)(1)(ii). We thus hold that the PCRA court properly
dismissed Appellant’s petition without a hearing for lack of jurisdiction. See
Roney, 79 A.3d at 604; Walters, 135 A.3d at 591-92.
The second issue in Appellant’s brief is whether his sentences are illegal.
He “asserts that in order for him to have been originally charged under 18
Pa.C.S.[A. §] 3125(b) [(aggravated indecent assault of a child)], he must first
have been charged under a qualifying offense defined in 18 Pa.C.S.[A. §]
3125(a) [(aggravated indecent assault defined)].” Appellant’s Brief at 15.
Appellant also claims that he was sentenced under a version of the corruption
of minors statute that did not exist when he committed the underlying
offenses and elevated the grading of the offense from a misdemeanor of the
first degree to a felony of the third degree.
Because Appellant’s PCRA petition was untimely filed, we do not reach
this illegal sentence question. See Commonwealth v. Fahy, 737 A.2d 214,
223 (Pa. 1999) (“Although legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one of
the exceptions thereto.”).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/4/2018
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