J-S77040-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERARDO RODRIGUEZ, :
:
Appellant : No. 1996 EDA 2014
Appeal from the PCRA Order Entered June 18, 2014
in the Court of Common Pleas of Chester County,
Criminal Division, at No(s): CP-15-CR-0004801-2009
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 06, 2015
Gerardo Rodriguez (Appellant) appeals from the June 18, 2014 order
which dismissed as untimely his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On July 7, 2010, Appellant pled guilty to three counts of possession
with intent to deliver a controlled substance. On August 12, 2010, the trial
court sentenced Appellant to an aggregate sentence of five to ten years of
imprisonment. Appellant did not file a direct appeal.
On June 21, 2011, Appellant, through privately-retained counsel, filed
his first PCRA petition. The petition was ultimately dismissed by order of
October 4, 2011. No appeal was filed.
On May 29, 2014, Appellant, pro se, filed a second PCRA petition.
Therein he alleged, inter alia, that he had learned on May 5, 2014 that
*Retired Senior Judge assigned to the Superior Court.
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counsel on his first PCRA petition had abandoned him by failing to file an
appeal. On June 3, 2014, the PCRA court issued a notice of intent to dismiss
as untimely Appellant’s petition without a hearing pursuant to Pa.R.Crim.P.
907. Appellant timely filed objections to the Rule 907 notice, in which he
argued that his petition was timely filed under the newly-discovered facts
exception of 42 Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Bennett,
930 A.2d 1264 (Pa. 2007). Notwithstanding Appellant’s objections, the
PCRA court dismissed his petition by order of June 18, 2014. Appellant
timely filed a notice of appeal and a statement of errors complained of on
appeal.
Appellant presents one question for this Court’s review: “Whether the
PCRA court erred by dismissing Appellant’s second PCRA [petition] as
untimely, where that petition, claiming, inter alia, PCRA counsel’s
ineffectiveness for failing to file a requested appeal, does in fact meet the
requirements of 42 Pa.C.S. § 9545.” Appellant’s Brief at 4 (unnecessary
capitalization omitted).
“Our standard of review of a trial court order granting or denying relief
under the PCRA calls upon us to determine ‘whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.’”
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).
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Any PCRA petition, including second and subsequent petitions, must
either (1) be filed within one year of the judgment of sentence becoming
final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).
“[T]he PCRA time restrictions are jurisdictional in nature; consequently,
Pennsylvania courts may not entertain untimely PCRA petitions.”
Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).
Subsection 9545(b)(1)(ii) provides a timeliness exception if the
petitioner alleges and proves that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
If the petitioner so alleges and proves, the petition will not be dismissed as
untimely if it was “filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant claims that the fact that counsel failed to file an appeal
from the dismissal of his first PCRA petition was unknown to him until May 5,
2014, and that he filed the instant petition within 60 days of discovering that
fact. He argues that “his repeated attempts to learn the status of that
appeal” demonstrate that he had acted with due diligence. Appellant’s Brief
at 8.
The PCRA court offered the following analysis of Appellant’s invocation
of subsection 9545(b)(1)(ii).
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[Appellant] acknowledged that his pro se second PCRA
petition was untimely, but he claimed that due to his transfers
between prisons over the years and his respective counsels’
alleged failures to respond to his letters and inquiries, that he
was not able to learn of first PCRA counsel’s failure to file a
Notice of Appeal from our October 4, 2011 dismissal of his first
PCRA Petition until May 5, 2014, presumably when he received
his copy of the docketing statements from the clerk of courts in
response to his April 7, 2014 letter request, the third such
request he made over the course of the almost four years that
have passed since his judgment of sentence became final (the
first having occurred February 21, 2011, following plea counsel’s
alleged failure to file [Appellant’s] allegedly requested direct
appeal, and the second having occurred on February 12, 2013).
[Appellant] claimed that “[w]ith all of the transfers,
[Appellant] only recently is getting regular access to his legal
materials and a library. He has tried, repeatedly, to reach [first
PCRA counsel] to inquire of the status of his appeal, to no avail.
Petitioner has only now learned that his appeal was never filed.”
[Appellant] described how he was transferred from S.C.I. -
Cresson soon after our October 4, 2011 decision denying his first
PCRA petition. He states he was transferred from S.C.I. -
Cresson to Cambria County Jail, where he spent “nearly a year”
before returning to S.C.I. - Cresson. S.C.I. - Cresson was
reportedly closed shortly thereafter and he was transferred to his
present place of incarceration, S.C.I. - Greene.
[Appellant] attached to his petition several letters he
allegedly wrote to his respective counsel[] over the years which
allegedly were never answered. He attached a copy of an
alleged notice of appeal which he claimed he drafted and mailed
to first PCRA counsel for purposes of appeal [of] our October 4,
2011 dismissal of his first PCRA [petition]. He also attached
copies of the three letters requesting docketing statements from
the Chester County clerk of courts office, one dated[ ] February
21, 2011, one dated February 12, 2013, and the last dated April
7, 2014. The clerk of courts responded to the first and third of
these letters with the requested materials. [Appellant] does not
dispute this.
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With respect to [Appellant’s] claim about his repeated
transfers interfering with his ability to send and receive mail so
that he has only recently been able to glean information about
the status of his requested appeal from our October 4, 2011
dismissal of his first PCRA petition, [Appellant] claims that he
was transferred from S.C.I. - Cresson to Cambria County jail
shortly after he wrote to first PCRA counsel allegedly requesting
that an appeal be filed on his behalf.
From the exhibits attached to his petition, it is evident that
he was residing in Cambria County jail by October 30, 2011 and
remained there until roughly August of 2012, according to a
subsequent letter addressed to first PCRA counsel on August 20,
2012. According to his own exhibits, he remained at Cambria
County Jail for roughly ten months without further disruption to
his living arrangements during that time.
He does not explain in his petition why he could not access
a computer during these ten months in Cambria County prison
or write, as he did on three other occasions, to the clerk of
courts of Chester County and receive copies of his docketing
statements during this time of relative residential stability at
Cambria County prison. He does not aver that any prison official
prevented him from corresponding with the court or its row
offices. Had he taken this small step around November of 2011,
a step which he was obviously aware, by his earlier letter to the
clerk of courts dated February 28, 2011 (following plea counsel’s
failure to file an allegedly requested direct appeal from his
negotiated sentence), was an option available to him, he would
have learned much more swiftly and definitively the status of his
allegedly requested collateral appeal.
Although he claims that his ability to communicate with
first PCRA counsel Evan Kelly, Esquire was “impossible” while he
was at Cambria County prison, he neglects to assert or explain
why communication with the Chester County clerk of courts
office was or would have been similarly impossible. His three
letters to the clerk of courts over the course of two years
reflect[] that such communication would not, in fact, have been
impossible, or even difficult.
Next, his correspondence reflects that he was returned to
S.C.I. - Cresson by January 10, 2013. On October 22, 2013
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[Appellant] wrote a final letter to first PCRA counsel still seeking
information regarding the status of his allegedly requested
appeal from our October 4, 2011 dismissal of his first PCRA
Petition. It still took him another four months in which to initiate
a new request for more recent copies of his docketing
statements from the Clerk of Court of Chester County.
***
[Appellant’s] claim that he has been in a “constant state of
flux” for the last four (4) years is not entirely accurate. His
petition avers that he had four prison transfers over the last four
years. The first was from S.C.I - Cresson to Cambria County.
He was transferred to Cambria County on or about October 30,
2011. He spent ten months there, before returning to SCI -
Cresson on or about August 20, 2012. In January of 2013, six
months later, he was still at S.C.I. - Cresson, and presumably,
by his own statements, once again in possession of his legal
materials. He remained at Cresson at least another month, as
evidenced by his February 12, 2013 letter to first PCRA counsel
Kelly. The next letter to first PCRA counsel, dated October 22,
2013, lists [Appellant’s] address as S.C.l. - Greene. He remains
at S.C.I. - Greene at present. As his various letters to counsel
and the clerk of courts demonstrate, [Appellant] spent significant
periods of time at each prison. He was not in a “constant state
of flux,” but rather had considerable periods of residential
stability over the last four years.
Even if we accept [Appellant’s] argument that he did not
have access to his “legal materials” while at Cambria County
prison, by the time of his return to SCI - Cresson on or about
August 20, 2012, he would have had access to these materials.
Indeed, by January 10, 2013 he was writing to first PCRA
counsel Kelly with the above-captioned docket number reflected
on his letter. Certainly by January 10, 2013, if not earlier,
[Appellant] had access to his “legal materials” and would have
been able to write to the clerk of courts with his docket number
and request copies of his docketing statements, as he had done
in February 2011, while at S.C.I. - Cresson. In fact, [Appellant]
did write to the clerk of courts on February 12, 2013.
Unfortunately, there is no record evidence that the clerk of
courts office responded to him at this time. Yet instead of
pursuing a response, [Appellant] waited more than a year before
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writing again on April 7, 2014 with a renewed request. Despite
our doubts as to [Appellant]’s claim that he did not have access
to a law library or computer over the last four years at any
prison,2 [the PCRA court] finds that [Appellant’s] failure to timely
pursue those procedures available to him, i.e. writing to the
clerk of courts for a copy of his docketing statement, removes
from him the ability to rely on the due diligence exception to the
PCRA’s timeliness requirements.
_____
2
Indeed, [Appellant’s] exhibits indicate that he was aware
and made use of S.C.I. - Cresson’s law library and staff, as
he included multiple citations to decisional and statutory
law in a letter he wrote to first PCRA counsel on
September 18, 2011 regarding his first PCRA Petition, and
he resided at S.C.I. - Cresson after he was sentenced on
August 12, 2010 until roughly October 30, 2011 and again
from August 20, 2012 through at least February 12, 2013,
if the dates on his letter exhibits are accurate.
PCRA Court Opinion, 7/30/2014, at 11-16 (citations, unnecessary
capitalization, and repetition of quantities in numeral form omitted).
The PCRA court’s determinations are supported by the record. We
agree that Appellant failed to plead facts which demonstrate the applicability
of an exception to the PCRA’s one-year time bar. See, e.g.,
Commonwealth v. Monaco, 996 A.2d 1076, 1082 (Pa.Super. 2010)
(holding Monaco’s sporadic efforts were insufficient to establish due diligence
under subsection 9545(b)(1)(ii)). Accordingly, the PCRA court did not have
jurisdiction to entertain the merits of Appellant’s claims, and it properly
dismissed Appellant’s petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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