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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
FREDIL OMAR RODRIGUEZ FUENTES :
:
Appellant : No. 174 MDA 2018
Appeal from the PCRA Order January 3, 2018
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000657-2005
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 05, 2018
Fredil Omar Rodriguez Fuentes (hereinafter “Appellant” or “Mr.
Fuentes”) appeals pro se from the January 3, 2018 order that denied his serial
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
A prior panel of this Court summarized the relevant facts and procedural
history of this matter as follows:
Appellant’s conviction follows a bizarre incident
in which he stabbed his next door neighbor thirty-
seven times with her own kitchen knives. In his
confession, Appellant stated that the victim ...
stepped out onto her front porch on the morning of
June 10, 2005, wearing only her undergarments.
When she saw Appellant, who was outside smoking,
she asked if he was locked out of his home or if he
needed to use a telephone. Appellant responded no to
both questions and the victim turned and went into
her house. For reasons not established by the record,
Appellant followed the victim into her home and, when
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* Former Justice specially assigned to the Superior Court.
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she attempted to ward him off with a knife, Appellant
punched her, disarmed her, and then stabbed her
multiple times. He first used the knife he had taken
from her and then others that he took from the
kitchen, as some of the knife blades bent during the
multiple stabbings. After Appellant had inflicted thirty-
seven stab wounds, he took off his bloody clothes and
placed them inside two plastic garbage bags. He then
locked the front door of the victim’s house, washed
his hands in the victim’s sink, and exited through the
back door, returning to his own home. The victim died
from her injuries.
(Commonwealth v. Fuentes, No. 1288 MDA 2006, unpublished
memorandum at *1-2 (Pa. Super. filed Oct. 10, 2007)).
On March 17, 2006, Appellant entered an open guilty plea,
with the assistance of counsel and an interpreter, to one count
each of criminal homicide and criminal trespass, and two counts
of aggravated assault.[1] At the April 17, 2006 degree of guilt
hearing, the trial court found Appellant guilty of murder of the first
degree. On June 26, 2006, the court sentenced him to a term of
life without the possibility of parole plus not less than three nor
more than seven years’ incarceration. Appellant appealed and this
Court affirmed his judgment of sentence on October 10, 2007.
(See id. at *1). Appellant did not seek review in the Pennsylvania
Supreme Court.
On January 25, 2008, Appellant filed a first PCRA petition
pro se. The court appointed counsel on February 7, 2008, and
ordered him to file an amended petition on Appellant’s behalf. On
May 14, 2010, counsel filed an amended PCRA petition, and, on
May 21, 2010, [pursuant to Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa. Super. 1988) (en banc),] he filed a Turner/Finley “no-
merit” letter and a motion to withdraw. On May 27, 2010, the
court granted counsel’s motion [to withdraw], but did not address
Appellant’s [PCRA] petition. (See Order, 5/27/10). On July 1,
2016, Appellant filed a second pro se amended PCRA petition. On
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1 18 Pa.C.S. §§ 2501(a), 3503(a)(1)(i), 2702(a)(1), and 2702(a)(4),
respectively. The aggravated assault convictions merged for purposes of
sentencing. N.T., Sentencing, 6/26/06, at 25.
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September 8, 2016, the PCRA court issued notice of its intent to
dismiss Appellant’s [PCRA] petition without a hearing. See
Pa.R.Crim.P. 907(1). On October 3, 2016, Appellant filed
objections to the court’s notice. The court dismissed Appellant’s
[PCRA] petition on October 4, 2016. (See Order, 10/04/16).
Appellant timely appealed pro se on October 27, 2016. Appellant’s
current, privately retained PCRA counsel, entered his appearance
in this [c]ourt on November 28, 2016.
Commonwealth v. Fuentes, 178 A.3d 202, 1858 MDA 2016 (Pa. Super. filed
September 27, 2017) (unpublished memorandum at 1) (footnotes omitted).
After review, this Court affirmed the order denying Appellant’s PCRA petition.
Id. at 3.
On November 6, 2017, Appellant filed the PCRA petition underlying the
instant appeal. On November 14, 2017, the PCRA court sent Appellant notice
of its intent to dismiss the PCRA petition without a hearing pursuant to
Pa.R.Crim.P. 907. Appellant sought and was granted an extension of time in
which to respond to the PCRA court’s Rule 907 notice. Appellant filed his
response to the Rule 907 notice on December 22, 2017, and on January 3,
2018, the PCRA court denied Appellant’s petition. On January 22, 2018,
Appellant filed a timely appeal. Both the PCRA court and Appellant have
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents eight issues, which are set forth verbatim
as follows:
A. Did the PCRA Court err in concluding that Mr. Fuentes’ 3 d PCRA
was not an amendment to the timely filed 1st PCRA when no order
ever issued dismissing 1st ?
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B. In relation to IV. A.; Did the PCRA Court err in concluding that
Mr. Fuentes’ 3d PCRA was not an amendment and met timeliness
exceptions; when the PCRA Court proved in its own Orders that
he was abandoned twice by PCRA attorneys ?
C. Did the PCRA Court err in finding that Mr. Fuentes’ petition did
not meet newly-discovered fact timeliness exception or that the
PCRA time-bar was unconstitutional as applied; where he alleged
that Trial/Direct Appeal attorneys abandoned him when they
refused to file requested Petition for Allowance of Appeal; and;
refused to raise the issue that Trial Court did not ask all 6
mandatory questions during colloquy ?
D. Did the PCRA Court err in finding that Mr. Fuentes’ petition did
not meet newly-discovered fact timeliness exception or that the
PCRA time-bar was unconstitutional as applied; where he alleged
abandonment by two PCRA attorneys ?
E. Did the PCRA Court err in finding Mr. Fuentes’ petition did not
meet the newly-discovered fact timeliness exception or that the
PCRA time-bar was unconstitutional as applied; where he alleged
that original PCRA Counsel failed to have his appellate rights
restored nunc pro tunc ?
F. Was second PCRA Counsel ineffective by failing to argue
ineffectiveness of Trial/Direct Appeal; and first PCRA counsel’s;
ineffectiveness in neglecting to assert that Mr. Fuentes’ Fifth
Amendment right to counsel and his corresponding state
constitutional right to counsel were violated when police
questioned him after he asked for an attorney ?
G. Was first and second PCRA counsel ineffective for failing to file
meritorious amended PCRA as ordered by PCRA Court ?
H. Was Trial/Direct Appeal attorneys Greco and Best; as well as
PCRA attorneys Seward and Browning; ineffective for refusing to
raise the meritorious grounds that there were that mitigating
circumstances that would have demanded a conviction/sentence
for 3d Degree; rather than 1st Degree; Murder ?
Appellant’s Brief at 4.
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At the outset, we are constrained to note that Appellant’s brief is largely
a broad-brushed attack on prior counsel and a conclusory assessment of
previous proceedings. Appellant’s brief is accusatory and lacks pertinent
citations to the record or relevant legal authority. “Although the courts may
liberally construe materials filed by a pro se litigant, pro se status confers no
special benefit upon a litigant, and a court cannot be expected to become a
litigant’s counsel or find more in a written pro se submission than is fairly
conveyed in the pleading.” Commonwealth v. Blakeney, 108 A.3d 739,
766, (Pa. 2014). With these principles in mind, we proceed with our analysis,
and we begin with our standard of review.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Additionally, a PCRA petition must be filed within one year of the date
that the judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This
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time requirement is mandatory and jurisdictional in nature, and the court may
not ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013). A judgment of sentence
“becomes 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 the review.” 42 Pa.C.S.
§ 9545(b)(3).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.2 A petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented. 42 Pa.C.S.
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2 The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-
year filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Furthermore, in order to be eligible for PCRA relief, the petitioner must
plead and prove that the alleged error has not been previously litigated or
waived. 42 Pa.C.S. § 9543(a)(3). “For purposes of this subchapter, an issue
is waived if the petitioner could have raised it but failed to do so before trial,
at trial, during unitary review, on appeal or in a prior state postconviction
proceeding.” 42 Pa.C.S. § 9544(b).
As noted above, Appellant was sentenced on June 26, 2006, and this
Court affirmed Appellant’s judgment of sentence on October 10, 2007.
Appellant did not file a petition for allowance of appeal in the Supreme Court
of Pennsylvania. Accordingly, Appellant’s judgment became final on
November 9, 2007, and he had one year in which to file a timely PCRA petition.
See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes 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 the review.”). Thus, the instant PCRA petition,
which Appellant filed on November 6, 2017, is patently untimely. However,
as stated above, if a petitioner does not file a timely PCRA petition, his petition
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nevertheless may be received under any of the three limited exceptions to the
timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1).
In Appellant’s issues A and B, he attempts to establish that his third
PCRA petition should be deemed an amendment to his first PCRA petition
because the PCRA court never ruled on the first petition. Appellant’s Brief at
15. As we noted above, Appellant’s first PCRA petition was timely, and
inexplicably, the PCRA court, while ruling on counsel’s petition to withdraw,
did not rule on the PCRA petition. However, after review of Appellant’s second
PCRA petition and counseled appeal, this Court’s 2017 decision addressed that
earlier procedural misstep and ended the litigation of Appellant’s first and
second PCRA petitions. Commonwealth v. Fuentes, 178 A.3d 202, 1858
MDA 2016 (Pa. Super. filed September 27, 2017) (unpublished
memorandum). Thus, we conclude that there is no merit to Appellant’s
assertion that his third PCRA petition is in any way an amendment to his first
PCRA petition, and Appellant has not established an exception to the PCRA’s
timing requirements.
In issues C, D, and E, Appellant alleges that his PCRA petition was timely
pursuant to the newly discovered evidence exception3 to the PCRA’s timing
requirements. Appellant’s Brief at 16-18. However, Appellant’s argument
consists only of his averment that he was abandoned by counsel at trial and
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3 42 Pa.C.S. § 9545(b)(1)(ii).
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in his direct appeal. Id. at 16-17. These clams are waived as they could have
been raised either on direct appeal or in Appellant’s previous PCRA petitions.
Commonwealth v. Spotz, 18 A.3d 244, 270 (Pa. 2011); 42 Pa.C.S. §
9543(a)(3); and 42 Pa.C.S. § 9544(b).
In issues F, G, and H, Appellant provides a litany of unsupported claims
of ineffective assistance of counsel and assertions of trial court error.
Appellant’s Brief at 18-19. Once again, these issues are waived as they could
have been raised on direct appeal or in a prior PCRA petition. Spotz, 18 A.3d
at 270; 42 Pa.C.S. § 9543(a)(3); and 42 Pa.C.S. § 9544(b).
After review, we conclude that Appellant’s PCRA petition was untimely
and no exceptions apply. Therefore, the PCRA court lacked jurisdiction to
address any claims presented. See Commonwealth v. Fairiror, 809 A.2d
396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear
an untimely petition). Likewise, we lack the authority to address the merits
of any substantive claims raised in the PCRA petition. See Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go
to a court’s right or competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2018
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