Com. v. Perez-Miranda, M.

J-S45019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAGDALENO PEREZ-MIRANDA :
:
Appellant : No. 1088 EDA 2020
Appeal from the PCRA Order Entered April 14, 2020,
in the Court of Common Pleas of Chester County,
Criminal Division at No(s): CP-15-CR-0000208-2015.
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 10, 2020
Magdaleno Perez-Miranda appeals from the order denying his petition
filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546.
We affirm.
The pertinent facts and procedural history may be summarized as
follows: On April 7, 2016, a jury convicted Perez-Miranda of multiple sex
offenses. On June 30, 2016, the trial court sentenced him to an aggregate
term of eighteen to thirty-six years of imprisonment. Perez-Miranda was also
classified as a sexually violent predator. He did not file a direct appeal.
On November 17, 2017, Perez-Miranda filed a pro se PCRA petition and
the PCRA court appointed counsel. On June 4, 2018, PCRA counsel filed a
“no-merit” letter and petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
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213 (Pa. Super. 1988) (en banc). On July 23, 2018, the PCRA court filed a
Pa.R.Crim.P. 907 notice of its intent to dismiss Perez-Miranda’s PCRA petition
as untimely. Perez-Miranda did not file a response. By order entered
September 13, 2018, the PCRA court denied the petition and permitted PCRA
counsel to withdraw. Perez-Miranda filed a timely appeal, which was
ultimately dismissed for failure to comply with Pa.R.A.P. 3517 (providing that
the “[f]ailure to file a docketing statement may result in dismissal of the
appeal”).
On December 19, 2019, Perez-Miranda filed a pro se PCRA petition in
which he claimed that he did not receive notices from this Court regarding the
filing deadline. On April 14, 2020, the PCRA court reinstated Perez-Miranda’s
appellate rights nunc pro tunc. This timely pro se appeal followed. Both
Perez-Miranda and the PCRA court have complied with Pa.R.A.P. 1925.
Perez-Miranda raises the following issues on appeal:
1. Did the PCRA court err as a matter of law by accepting
PCRA counsel’s [Turner/Finley] letter when within it,
counsel had encouraged hybrid representation by
directing [Perez-Miranda] to file a response to the court’s
anticipated Rule 907 notice of intent to dismiss albeit
counsel had not been given permission to withdraw his
representation?
2. Did the PCRA court err as a matter of law when it agreed
with PCRA counsel that [Perez-Miranda’s] PCRA petition
was untimely on the issue of being deprived of his right
to direct appeal because [he was] abandoned by counsel,
when the salient fact is not the barebones time-line to
file a timely PCRA petition but rather the claim hinges on
when did [Perez-Miranda] learn of counsel’s failure to file
a requested direct appeal?
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Perez-Miranda’s Brief at 4 (excess capitalization omitted).
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is to ascertain whether “the determination of the PCRA court
is supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the findings
in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Before addressing the issues raised by Perez-Miranda, we must first
determine if the PCRA court correctly concluded that his PCRA petition was
untimely. Generally, a petition for relief under the PCRA, including a second
or subsequent petition, must be filed within one year of the date the judgment
is final unless the petition alleges, and the petitioner proves, that an exception
to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these
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1 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
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statutory exceptions must be filed within sixty days of the date the claims
could have been presented. 42 Pa.C.S.A. § 9545(b)(2).2 Asserted exceptions
to the time restrictions for a PCRA petition must be included in the petition,
and may not be raised for the first time on appeal. Commonwealth v.
Furgess, 149 A.3d 90 (Pa. Super. 2016).
Because Perez-Miranda did not file a direct appeal, for PCRA timeliness
purposes, his judgment of sentence became final thirty days later on August
1, 2016. See 42 Pa.C.S.A. § 9545(b)(3); 1 Pa.C.S.A. § 1908 (providing that
weekends and legal holidays are not included in time computations). Thus,
Perez-Miranda had until August 1, 2017, to file a timely PCRA petition.
Because he filed the petition at issue on November 17, 2017, it is untimely
unless he satisfied his burden of pleading and proving that one of the
enumerated exceptions applies.
Here, the PCRA court concluded that Perez-Miranda could not establish
any of the timeliness exceptions, and further found that his claim of prior
counsel’s abandonment were waived because the claim could have been
brought in a timely PCRA petition. See Rule 907 Notice, 7/23/18, at 1. n.1.
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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).
2 Although this statutory section has been amended to extend the filing
deadline to one year, it only “applies to claims arising on [December] 24,
2017.” See § 9545(b)(2). Counsel’s alleged failure to file a direct appeal
occurred prior to that date.
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Perez-Miranda claims that his PCRA petition is timely because “it was
filed within 60 days after learning that trial counsel failed to file a requested
direct appeal[.]” Perez-Miranda’s Brief at 12. With this claim, Perez-Miranda
attempts to establish the PCRA’s timeliness exception found at section
9545(b)(1)(ii).
Our review of the record, however, reveals that Perez-Miranda did not
raise this timeliness exception in his PCRA petition. Rather, he raised the
exception regarding a newly recognized constitutional right pursuant to
section 9545(b)(1)(iii). See PCRA Petition, 11/17/17, at 3. Thus, the claim
is not preserved below and inappropriately is being raised for the first time on
appeal. Furgess, supra.
In sum, because Perez-Miranda did not plead and prove a timeliness
exception, the PCRA court correctly concluded that it lacked jurisdiction to
consider his untimely petition.3
Order affirmed.
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3Even were we to consider Perez-Miranda’s newly-discovered evidence claim,
he could not establish due diligence. It is clear that a new attorney entered
his appearance on Perez-Miranda’s behalf on May 23, 2017. A timely petition
could have been filed at that time raising a claim regarding the failure to file
a requested direct appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2020
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