Com. v. DeJesus, A.

J-A25040-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ALEJANDRO DEJESUS :
:
Appellant : No. 414 MDA 2020
Appeal from the PCRA Order Entered February 4, 2020
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001371-2008,
CP-36-CR-0001383-2008
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 15, 2021
Appellant, Alejandro DeJesus, appeals pro se from the order entered in
the Lancaster County Court of Common Pleas, which dismissed as untimely
his serial petition filed under the Post Conviction Relief Act (“PCRA”).1 We
affirm.
The relevant facts and procedural history of this case are as follows. On
May 4, 2009, Appellant entered a negotiated guilty plea to third-degree
murder, robbery, conspiracy, and burglary. The court imposed an aggregate
sentence of 35 to 70 years’ imprisonment. Appellant did not pursue direct
review.
Between 2009 and 2017, Appellant unsuccessfully litigated several PCRA
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1 42 Pa.C.S.A. §§ 9541-9546.
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petitions. On November 15, 2018, Appellant filed the current pro se serial
PCRA petition. The court appointed counsel on January 2, 2019, who
subsequently filed a motion to withdraw and a “no-merit” letter pursuant to
Turner/Finley.2 In the “no-merit” letter, counsel explained, inter alia, why
the current PCRA petition was time-barred. Appellant filed a response on July
12, 2019, challenging counsel’s legal conclusions. On January 9, 2020, the
court issued notice of its intent to dismiss the petition without a hearing per
Pa.R.Crim.P. 907, and granted counsel’s request to withdraw. Appellant filed
a pro se response on January 27, 2020. Following review of the response, the
court denied PCRA relief on January 31, 2020.
Appellant timely filed a pro se notice of appeal on Monday, March 2,
2020.3 The court did not order, and Appellant did not file, a concise statement
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2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3 Appellant’s underlying convictions stem from two underlying docket numbers
and Appellant’s current PCRA petition lists both docket numbers. Although
the PCRA court denied relief at both dockets, Appellant filed only a single
notice of appeal, which generally violates our Supreme Court’s
pronouncement in Commonwealth v. Walker, 646 Pa. 456, 185 A.3d 969(2018) (holding common practice of filing single notice of appeal from order
involving more than one docket will no longer be tolerated, because practice
violates Pa.R.A.P. 341; failure to file separate appeals under these
circumstances generally requires appellate court to quash appeal).
Nevertheless, this Court recently held that a breakdown in the operations of
the court occurs where the trial court does not inform the appellant of his
appellate rights, such that this Court may decline to quash an appeal under
Walker. See Commonwealth v. Floyd, ___ A.3d ___, 2020 PA Super 287(filed December 16, 2020). Here, the order denying PCRA relief lists both
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of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises one issue for our review:
Whether Appellant is entitled to a remand for an evidentiary
hearing as the finding[s] of the PCRA court are fraught with
error and have deviated from the legal standard?
(Appellant’s Brief at 3).
Appellant acknowledges that his current PCRA petition is facially
untimely. Appellant argues, however, that he satisfied the “newly-discovered
facts” exception to the time-bar, because he obtained his mental health and
school records on September 27, 2018. Appellant asserts these records
disclose that at the time of his guilty plea, Appellant had been treated for
psychosocial stressors, bi-polar disorder, took Prozac, and had an I.Q. of 0.59,
placing him in the range of mild mental retardation. Appellant claims the trial
court did not have the benefit of a pre-sentence investigation report at
sentencing, so the court was unaware of Appellant’s mental health issues,
which could have constituted mitigating evidence to reduce his sentence.
Appellant maintains he filed the current PCRA petition within 60 days of
obtaining these records. Appellant concludes his current PCRA petition is
timely, and this Court must remand for an evidentiary hearing. We disagree.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.
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docket numbers, but fails to provide any information concerning Appellant’s
appellate rights. Consequently, we decline to quash this appeal. See id.-3-
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denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).
Pennsylvania law makes clear that no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is final “at the conclusion of direct review, 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the judgment of sentence became final, the petitioner must
allege and prove at least one of the three timeliness exceptions:
(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 file his
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petition within the relevant statutory window. See 42 Pa.C.S.A. § 9545(b)(2).
To meet the “newly-discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must 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. Brown, 111
A.3d 171, 176 (Pa.Super. 2015). Due diligence demands that a PCRA
petitioner take reasonable steps to protect his own interests. Id.Instantly, Appellant’s judgment of sentence became final on June 3,
2009, upon expiration of the time to file a notice of appeal in this Court. See
42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a) (allowing 30 days to file notice
of appeal in this Court). Appellant filed the current PCRA petition on November
15, 2018, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Appellant now attempts to invoke the “newly-discovered facts” exception to
the PCRA time-bar, relying on evidence of his prior mental health and school
records. Although Appellant baldly claims on appeal that he could not have
ascertained these records sooner with the exercise of due diligence, Appellant
provides no explanation to support that assertion. Thus, Appellant has failed
to satisfy the asserted time-bar exception. See 42 Pa.C.S.A. § 9545(b)(1)(ii);
Brown, supra. Accordingly, we affirm the order dismissing Appellant’s
current PCRA petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/15/2021
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