Com. v. Diaz, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ENDO DIAZ :
:
Appellant : No. 2108 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000522-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ENDO DIAZ :
:
Appellant : No. 2109 EDA 2022
Appeal from the PCRA Order Entered August 19, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001840-2017
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 23, 2023
Appellant Endo Diaz appeals from the order dismissing his first Post-
Conviction Relief Act1 (PCRA) petition as untimely. Appellant argues that trial
counsel’s abandonment of Appellant satisfies the newly discovered fact
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1 42 Pa.C.S. §§ 9541-9546.
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exception to the PCRA’s one-year time-bar. Appellant also argues that trial
counsel was ineffective for failing to file a direct appeal. We affirm.
On April 16, 2018, Appellant pled guilty to third-degree murder,
conspiracy to commit murder, and possession of an instrument of crime (PIC)2
at Docket No. 1840-2017. Appellant subsequently pled guilty to possession
with intent to distribute a controlled substance (PWID)3 at Docket No. 522-
2017 on September 24, 2018. That same day, the trial court imposed an
aggregate sentence of sixteen and one-half to thirty-three years’
incarceration. James Berardinelli, Esq. (trial counsel) represented Appellant
at the plea hearing and at sentencing. Appellant did not file any post-sentence
motions or a direct appeal.
On November 2, 2020, Appellant filed a first pro se PCRA petition listing
both trial court docket numbers. The PCRA court appointed PCRA counsel,
who subsequently filed an amended PCRA petition on Appellant’s behalf.
Therein, Appellant claimed that he satisfied the newly discovered facts
exception to the PCRA’s one-year time bar. Am. PCRA Pet., 5/24/22, at 2
(unpaginated). Relevant to this appeal, Appellant also raised a substantive
claim of ineffective assistance of counsel for failing to consult with Appellant
about the filing of post-sentence motions or a direct appeal. Id. at 1-4
(unpaginated).
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2 18 Pa.C.S. §§ 2502(c), 903(c), and 907 respectively.
3 35 P.S. § 780-113(a)(30).
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The PCRA court held an evidentiary hearing on August 19, 2022.
Appellant testified with the aid of a Spanish language interpreter. N.T. PCRA
Hr’g, 8/19/22, at 3-5. Appellant explained that he is not fluent in the English
language and throughout the guilty plea and sentencing process, he had the
assistance of a Spanish language interpreter. Id. at 5-6. Appellant stated
that after he was sentenced, he did not have any further contact with his trial
counsel, and that he never tried to contact trial counsel. Id. at 6-7, 11-12.
Appellant claimed that he filed his pro se PCRA petition about a week after a
fellow Spanish-speaking inmate told him that he could appeal his sentence.
Id. at 6-7. Appellant acknowledged that at the time of sentencing, he was
informed that he had ten days to file a post-sentence motion and thirty days
to file a notice of appeal. Id. at 9-10. Further, in its Pa.R.A.P. 1925(a)
opinion, the PCRA court, which also presided over the plea hearing and the
sentencing hearing, indicated that at sentencing, and under oath, Appellant
unequivocally stated that he did not wish to appeal. Additionally, at
sentencing, the court reviewed Appellant’s appellate rights with him and
informed Appellant that unless he contacted trial counsel, trial counsel would
not file an appeal. Appellant refused the opportunity to speak with trial
counsel after sentencing and thereafter did not attempt to contact trial counsel
after sentencing. PCRA Ct. Op., 10/6/22, at 3; N.T. Sentencing Hr’g, 9/24/18,
at 56-57; N.T. PCRA Hr’g, 8/19/22, at 9-12. Trial counsel testified that he
explained the Commonwealth’s plea offer to Appellant with the assistance of
a Spanish language interpreter. N.T. PCRA Hr’g, 8/19/22, at 15-17. Trial
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counsel recalled that after sentencing, he did not speak with Appellant further,
and no one contacted him on Appellant’s behalf regarding filing post-sentence
motions or a direct appeal. Id. at 15-18.
At the conclusion of the hearing, the PCRA court dismissed Appellant’s
petition. Id. at 28. Appellant filed timely notices of appeal at each trial court
docket number. The PCRA court did not order Appellant to comply with
Pa.R.A.P. 1925(b). The PCRA court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises the following issues:
1. Did [Appellant’s] PCRA petition satisfy the newly discovered
facts exception to the PCRA’s time bar?
2. Did [trial] counsel render ineffective assistance by failing to
consult with [Appellant] during the thirty days immediately
following the trial court’s imposition of sentence?
Appellant’s Brief at 5.
In his first issue, Appellant argues that he met the newly discovered fact
exception to the PCRA’s one-year time-bar. Id. at 10-13 (citing, inter alia,
Commonwealth v. Chester, 163 A.3d 470, 473 (Pa. Super. 2017)).
Specifically, Appellant contends that trial counsel “abandoned [Appellant] by
not consulting with him about his appellate rights during the time to file post-
sentence motions and a notice of appeal[,]” and this resulted in the “‘complete
deprivation’” of his right to appellate review. Id. at 12 (citing
Commonwealth v. Peterson, 192 A.3d 1123, 1131 (Pa. 2018)). Appellant
also asserts that he was diligent in discovering that trial counsel had
abandoned him with respect to his direct appeal because Appellant was not
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able to contact trial counsel to inquire about appealing his sentence and
Appellant is not fluent in the English language. Id. at 13. Appellant claims
that he promptly filed his PCRA petition after a Spanish-speaking inmate
informed Appellant that he could have appealed his sentence. Id.
In reviewing an order denying a PCRA petition, our standard of review
is well settled:
[O]ur standard of review from the denial of a PCRA petition is
limited to examining whether the PCRA court’s determination is
supported by the evidence of record and whether it is free of legal
error. The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we
apply a de novo standard of review to the PCRA court’s legal
conclusions.
Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)
(citations omitted and formatting altered). “Moreover, it is well settled that
where the result is correct, an appellate court may affirm a lower court’s
decision on any ground without regard to the ground relied upon by the lower
court itself.” Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super.
2022) (citations and quotation marks omitted)).
The timeliness of a PCRA petition is a threshold jurisdictional question.
See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (stating
that “Pennsylvania law makes clear that when a PCRA petition is untimely,
neither this Court nor the trial court has jurisdiction over the petition” (citation
and quotation marks omitted)). “A PCRA petition, including a second or
subsequent one, must be filed within one year of the date the petitioner’s
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judgment of sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).” Commonwealth v.
Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote omitted). A judgment
of sentence becomes final at the conclusion of direct review, or at the
expiration of time for seeking such review. See id. at 17.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence becomes final if the petitioner pleads and proves one of
the following three statutory 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. § 9545(b)(1)(i)-(iii). A petitioner asserting one of these exceptions
must file a petition within one year of the date the claim could have first been
presented. See 42 Pa.C.S. § 9545(b)(2).4 “It is the petitioner’s burden to
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4 On October 24, 2018, the General Assembly amended Section 9545(b)(2)
and extended the time for filing a petition from sixty days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter.
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plead and prove that one of the [timeliness] exceptions applies.” Jones, 54
A.3d at 17 (citation omitted and formatting altered).
To establish the newly discovered fact exception to the PCRA time bar,
“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 . . . under this subsection.”
Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citations
omitted and formatting altered). “Due diligence demands that the petitioner
take reasonable steps to protect his own interests. A petitioner must explain
why he could not have learned the new fact(s) earlier with the exercise of due
diligence. This rule is strictly enforced.” Commonwealth v. Brown, 111
A.3d 171, 176 (Pa. Super. 2015) (citations omitted).
“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.” Id. (citation omitted and formatting altered). However, Section
9545(b)(1)(ii) “does not require any merits analysis of an underlying after-
discovered evidence claim.” Id. at 177 (citation and footnote omitted); see
also Bennett, 930 A.2d at 1272.
Generally, claims of ineffective assistance of counsel do not constitute a
“fact” for the purposes of invoking the newly discovered facts exception to the
PCRA time-bar found in Section 9545(b)(1)(ii). Commonwealth v.
Gamboa-Taylor, 753 A.2d 780, 786 (Pa. 2000). In Bennett, our Supreme
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Court recognized an exception to Gamboa-Taylor’s general rule and held that
counsel’s abandonment of a client on direct appeal can constitute a “fact” for
the purposes of Section 9545(b)(1)(ii). Bennett, 930 A.2d at 1274; see also
Chester, 163 A.3d at 474 (applying Bennett and holding that the defendant
“properly invoked the timeliness exception at section 9545(b)(1)(ii), by
demonstrating that his counsel had abandoned him[]” by failing to file a
requested direct appeal).
Subsequently, the Pennsylvania Supreme Court held that the Bennett
exception to Gamboa-Taylor, and its progeny, applies to instances of
instances “where PCRA counsel’s ineffectiveness per se completely forecloses
review of collateral claims.” Peterson, 192 A.3d at 1130. The Peterson
Court explained:
Abandonment, . . . is only one form of ineffectiveness per se, and
our decision in Bennett did not limit its application to instances
of attorney abandonment. To the contrary, in Bennett we
emphasized that the important distinction for purposes of
application of the subsection 9545(b)(1)(ii) exception is whether
counsel’s alleged ineffectiveness results in a partial deprivation of
review (Gamboa-Taylor and its progeny) or instead completely
deprives his client of review. See Bennett, 930 A.2d at 1272-74.
Id. at 1131; see also Commonwealth v. Parrish, 273 A.3d 989, 1004 (Pa.
2022) (stating that “a showing that counsel failed to file a requested appeal is
ineffectiveness per se, and prejudice is presumed without the need for proof
because the circumstances are so likely to prejudice the accused that the cost
of litigating their effect in a particular case is unjustified” (citation and
quotation marks omitted). However, “[u]nlike cases involving a failure to file
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a requested appeal for which prejudice is presumed, a failure to consult with
the defendant does not constitute ineffectiveness per se.” Parrish, 273 A.3d
at 1005.
Here, there is no dispute that Appellant’s PCRA petition was facially
untimely. Appellant’s judgment of sentence became final on October 24,
2018, the date on which the time to file a direct appeal expired. See 42
Pa.C.S. § 9545(b)(3) (stating that the judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review); Pa.R.A.P. 903(c)(3) (providing that when no post-sentence motion
has been filed, a notice of appeal to Superior Court must be filed within thirty
days of the imposition of the judgment of sentence in open court). Appellant
filed his pro se PCRA petition on November 2, 2020, more than a year after
the one-year deadline for filing a facially timely PCRA petition expired on
October 24, 2019. See 42 Pa.C.S. § 9545(b)(1).
Here, the PCRA court explained:
On September 24, 2018, at sentencing, [Appellant] stated he did
not want to appeal, and refused the opportunity to speak with
[trial] counsel. N.T. 9/24/2018 at 56-57; N.T. 8/19/22 at 9-12.
Even though this court informed [Appellant] that if he wanted to
appeal he would need to contact his attorney, he admitted that he
failed to contact [trial] counsel after sentencing. Id. [Trial]
counsel, before sentencing, and this court, during sentencing,
reviewed [Appellant’s] appellate rights with [Appellant]. N.T.
9/24/2018 at 56-57; N.T. 8/19/22 at 9-21. [Appellant] changed
his mind about appealing his sentence only after the period to file
a notice of appeal had expired and failed to take any action in his
case for over two years. N.T. 8/19/22 at 6-7. This petition is
facially untimely and [Appellant] fails to establish any exception
to the timeliness requirement.
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PCRA Ct. Op. at 6 (some citations omitted and formatting altered).
On appeal, Appellant argues that trial counsel’s failure to file a direct
appeal is a newly discovered fact. Upon review, Appellant’s boilerplate
arguments seem to frame his claim of attorney abandonment as a failure of
trial counsel to consult with him about filing a direct appeal. As noted
previously, only a claim of ineffectiveness per se that completely deprives a
petitioner of appellate review satisfies the newly discovered facts exception.
See Peterson, 192 A.3d at 1130. In contrast, a counsel’s failure to consult
with a client about an appeal is not an instance of ineffective assistance per
se. See Parrish, 273 A.3d at 1005. In any event, on this record, we agree
with the PCRA court that Appellant’s claims of attorney abandonment fail
because counsel did not abandon him. At sentencing, Appellant stated he did
not want to appeal, and refused the opportunity to speak with trial counsel.
Even though Appellant was informed by the judge at sentencing that if he
wanted to appeal, he would need to contact his attorney, Appellant admitted
at the PCRA hearing that he failed to contact trial counsel after sentencing.
See PCRA Ct. Op. at 6; N.T. Sentencing Hr’g, 9/24/18, at 56-57; N.T. PCRA
Hr’g, 8/19/22, at 9-12. For these reasons, we conclude that Appellant has
failed to plead and prove that trial counsel’s failure to consult with him about
filing post-sentence motions or an appeal was a newly discovered fact,
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therefore no relief is due.5 See Jones, 54 A.3d at 17; Gamboa-Taylor, 753
A.2d at 786. Accordingly, we affirm the PCRA court’s order.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/23/2023
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5 Having concluded that Appellant’s PCRA petition is untimely, we need not
address his substantive claim of ineffective assistance of counsel. See Miller,
102 A.3d at 992.
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