Com. v. Cortes, J.

• Court: Superior Court of Pennsylvania
• Decided: March 28, 2023
• Docket: 1443 WDA 2021
• Status: Unpublished

Opinion

J-A18011-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE CORTES : : Appellant : No. 1443 WDA 2021

Appeal from the PCRA Order Entered November 4, 2021 In the Court of Common Pleas of Washington County Criminal Division at No: CP-63-CR-0003434-2016

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED: MARCH 28, 2023

Appellant, Jose Cortes, appeals from the November 4, 2021 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-46. We affirm.

The record reveals that, on April 12, 2019, Appellant pled guilty to two

counts of involuntary deviate sexual intercourse (“IDSI”), endangering the

welfare of children (“EWOC”) and corruption of minors.1 After accepting the

plea, the trial court imposed an aggregate four to twelve years of incarceration

followed by three years of special probation. Appellant did not file post-

sentence motions or a direct appeal. Seventeen months later, on September

10, 2020, Appellant filed a pro se PCRA petition. Appellant filed an amended,

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1 18 Pa.C.S.A. §§ 3123(b), 4304(a)(1), and 6301(a)(1)(ii). J-A18011-22

counseled PCRA petition on October 15, 2020. He claimed counsel was

ineffective for failing to file a requested direct appeal. He also claimed he was

unaware of counsel’s failure until August 12, 2020, when he sent a letter to

the Washington County Clerk of Courts requesting information on his appeal

and received a response one week later stating that no appeal was pending.

The Commonwealth filed its answer on February 17, 2021.

On August 27, 2021, the PCRA court conducted a hearing. In support

of the timeliness of his petition, Appellant testified that he was unaware of

counsel’s failure to file the requested appeal until after the PCRA deadline

expired. Appellant did not produce counsel to testify at the PCRA hearing. On

November 4, 2021, the PCRA court entered an order dismissing the petition

as untimely. This timely appeal followed.

Appellant presents the following question:

Did the PCRA Court err in denying [Appellant’s] amended petition on the factually unsupported ground that [Appellant] knew that counsel had failed to file post-sentence motions and/or an appeal more than a year prior to his filing of his pro se petition seeking reinstatement of his right to do so?

Appellant’s Brief at 4.

We conduct our review as follows:

In PCRA appeals, our scope of review is limited to the findings of the PCRA court and the evidence on the record of the PCRA court’s hearing, viewed in the light most favorable to the prevailing party. Because most PCRA appeals involve questions of fact and law, we employ a mixed standard of review. We defer to the PCRA court’s factual findings and credibility determinations supported by the record. In contrast, we review the PCRA court’s legal conclusions de novo.

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Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015), appeal denied, 123 A.3d 331 (Pa. 2015).

The PCRA requires that any petition thereunder be filed within one year

of the date of finality of the judgment of sentence. 42 Pa.C.S.A. § 9545(b)(1).

Appellant concedes that the instant petition is facially untimely. But the PCRA

provides an exception to the one-year time bar if “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.A. § 9545(b)(1)(ii).

A petition filed under § 9545(b)(1)(ii) must be filed within one year of the first

date on which the claim could have been raised. 42 Pa.C.S.A. § 9545(b)(2).

The PCRA’s timeliness provisions are jurisdictional; our courts have no

authority to entertain a petition that does not meet them. Commonwealth

v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal denied, 47 A.2d

845 (Pa. 2012).

The timeliness exception under § 9545(b)(1)(ii) has two elements: (1)

the facts upon which the PCRA claim is predicated were unknown to the

petitioner; and (2) the petitioner could not have learned of those facts through

the exercise of due diligence. Commonwealth v. Peterson, 192 A.3d 1123,

1128 (Pa. 2018). “Due diligence does not require perfect vigilance and

punctilious care, but merely a showing the party has put forth reasonable

effort to obtain the information upon which a claim is based.”

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016). And where, as here,

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the petitioner alleges that counsel’s ineffectiveness completely deprived him

of the opportunity for collateral review, counsel’s ineffectiveness can be raised

as a newly discovered fact. Peterson, 192 A.3d at 1130 (citing

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2018)). Thus, an

attorney’s failure to file a brief (as in Bennett) or filing of a PCRA petition one

day late (as in Peterson) can be a newly discovered fact that permits the

courts to exercise jurisdiction over a PCRA petition under § 9545(b)(1)(ii).

Instantly, the record establishes that Appellant knew of his counsel’s

failure to file the allegedly2 requested appeal well within the one-year time

limitation. As noted above, Appellant was sentence on April 12, 2019 and

took no further action after that date. His judgment of sentence became final

thirty days later, on May 13, 2019. He therefore had until May 12, 2020 to

file a PCRA petition. Appellant testified at the PCRA hearing that he asked his

family to periodically check on the status of his appeal. N.T. Hearing, 8/27/21,

at 9, 16-17. Appellant also testified that as of September of 2019, he was

aware that he could ask his family to look at his docket sheet for him. Id. at

17. He did so, and they informed him nothing new was scheduled; i.e., there

was no post-sentence motion or a scheduled hearing thereon. Id. at 19. In

December of 2019, he personally confirmed the status of his docket with “a

staff worker.” Id. at 17.

2 Appellant did not call counsel as a witness at the PCRA hearing.

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In addition, the record confirms that Appellant was informed at his

sentencing of the ten-day deadline for filing a post-sentence motion if he was

unhappy with the sentence imposed. Id. at 21. Thus, Appellant’s awareness

in September and December of 2019 was more that sufficient to inform him

that counsel had failed to take any action on his behalf. And, as of that time,

he had eight months remaining within which to file a timely PCRA petition. He

failed to do so. Furthermore, Appellant did not contact his attorney in

September or December of 2019 to ask why the docket reflected no further

action after his sentencing. Id. at 17.

Thus, the record supports the PCRA court’s findings that Appellant was

aware of counsel’s inaction well in advance of the one-year PCRA deadline,

and that Appellant failed to establish the applicability of § 9545(b)(1)(ii). That

is, he failed to put forth “reasonable effort” to obtain the information on which

his claim is based. Cox, 146 A.3d at 230. The PCRA court did not err in

dismissing the petition as untimely.3

Order affirmed.

3 The record is silent as to why Appellant’s former counsel was not called to testify at the PCRA hearing. The Commonwealth does not address the matter in its brief, nor did the PCRA court mention it in its opinions, other than a general finding that Appellant’s testimony was not credible. With Appellant’s testimony deemed not credible, and without any testimony from counsel, there is no evidence that Appellant actually requested an appeal.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/28/2023

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