Com. v. Diaz, U.

• Court: Superior Court of Pennsylvania
• Decided: September 1, 2020
• Docket: 1357 WDA 2019
• Status: Unpublished

Opinion

J-S26028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ULYSSES S. DIAZ : : Appellant : No. 1357 WDA 2019

Appeal from the PCRA Order Entered August 12, 2019 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000652-2010

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020

Ulysses S. Diaz appeals pro se from the order dismissing his second

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. We vacate and remand.

This case stems from Diaz’s 2010 conviction for attempted robbery and

related offenses. After a jury convicted Diaz, the trial court sentenced him to

84 to 168 months’ incarceration on November 12, 2010, and this Court

affirmed the judgment of sentence. Commonwealth v. Diaz, 37 A.3d 1233

(Pa.Super. 2011) (unpublished memorandum). Thereafter, Diaz filed a PCRA

petition and was granted the reinstatement of his right to file a petition of

allowance of appeal with the Pennsylvania Supreme Court. Thus, on May 23,

2013, Diaz filed a counseled petition for allowance of appeal with our Supreme

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* Retired Senior Judge assigned to the Superior Court. J-S26028-20

Court, which that Court denied on September 17, 2013. Commonwealth v.

Diaz, 74 A.3d 1029 (Pa. 2013). Diaz did not seek review with the United

States Supreme Court.

Diaz filed a first PCRA petition in January 2015, and the PCRA court

appointed counsel, who filed a petition to withdraw and a no-merit letter.

Ultimately, the PCRA court granted counsel’s petition to withdraw and

dismissed Diaz’s petition as untimely. Diaz appealed in January 2017 and we

affirmed. See Commonwealth v. Diaz, 193 WDA 2017 (Pa.Super. filed

October 4, 2017) (unpublished judgment order).

Diaz filed the instant pro se PCRA petition on July 5, 2019. Diaz

contended that his PCRA attorney failed to inform him that this Court had

affirmed the dismissal of his first PCRA petition, and he only learned of this

Court’s ruling in November 2018, after he wrote to this Court to inquire about

his case. He contended that counsel thus deprived him of the opportunity to

seek allowance of appeal in the Pennsylvania Supreme Court.

The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss

Diaz’s petition as untimely, and Diaz filed a timely response. The PCRA court

initially dismissed Diaz’s petition without reference to his response but

ultimately considered the objections and then issued an order re-dismissing

the petition as untimely.

Diaz filed a timely notice of appeal and the PCRA court issued an order

requiring Diaz to file a Pa.R.A.P. 1925(b) statement within 21 days. The order

was entered on September 10, 2019, giving Diaz until October 1, 2019, to file

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a timely statement. The PCRA court issued an order, on October 11, 2019,

concluding Diaz had waived all issues on appeal by failing to file a timely Rule

1925(b) statement.

Diaz raises the following issues:

1. Whether [Diaz] filed with the lower court a timely Pa.R.A.P. 1925(b) statement?

2. Whether [Diaz] provided the lower court with sufficient evidence to invoke subsection 9545 (b)(1)(ii), i.e., the newly discovered facts exception under 42 Pa.C.S.A. §[§] 9541-9546, i.e., the Post Conviction Relief Act (PCRA) statute?

Diaz’s Br. at 4.

When reviewing the denial or grant of relief under the PCRA, “[w]e must

determine whether the PCRA court’s ruling is supported by the record and free

of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.

2018) (citation omitted).

In his first issue, Diaz contends that the trial court erred by concluding

he failed to file a timely Rule 1925(b) statement. Issues not included in a

court-ordered timely Pa.R.A.P. 1925(b) statement are waived. See Pa.R.A.P.

1925(b)(4)(vii). However, under the prison mailbox rule, courts “deem a pro

se document filed on the date it is placed in the hands of prison authorities for

mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.Super.

2011). Further, “while the prisoner mailbox rule uses the term ‘filed,’ the

document must at least be addressed to a proper filing office within the Unified

Judicial System in order to complete the filing.” Id. at 1282.

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Here, the PCRA court’s order required Diaz to file a Rule 1925(b)

statement by October 1, 2019. Diaz gave a Rule 1925(b) statement to prison

authorities for mailing on September 30, 2019, as evidenced by the date on

his statement and the date listed on his Department of Corrections “cash slip.”

Further, the certified record includes the envelope Diaz used to mail his Rule

1925(b) statement, and it was properly addressed to the clerk of courts and

judge’s chambers, but bears a post mark of October 4, 2019. However, the

lower court clerk did not docket Diaz’s Rule 1925(b) statement until October

15, 2019, thus prompting the lower court to incorrectly conclude that Diaz had

not filed a timely Rule 1925(b) statement. We thus agree with Diaz that he

filed a timely Rule 1925(b) statement, pursuant to the prisoner mailbox rule.

See Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007).

Next, we turn to Diaz’s contention that the trial court erred by dismissing

his PCRA petition as untimely. A petitioner has one year after the judgment of

sentence becomes final to file a PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).

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.A. § 9545(b)(3).

When a petitioner files a PCRA petition after that deadline, the petitioner

bears the burden of pleading and proving at least one of the PCRA’s time-bar

exceptions. These exceptions are:

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(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.A. § 9545(b)(1)(i)-(iii).

Any petition attempting to invoke these exceptions “shall be filed within

one year of the date the claim could have been presented.” 42 Pa.C.S.A. §

9545(b)(2). This deadline increased from 60 days to one year, effective

December 24, 2018. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. The new,

extended deadline applies to claims arising on or after December 24, 2017.

Id.

In this case, Diaz’s judgment of sentence became final on December 16,

2013, when the time to file a petition for a writ of certiorari with the United

States Supreme Court expired. U.S. Sup. Ct. Rule 13. Therefore, the one-year

deadline expired on December 16, 2014 and the instant petition, which Diaz

filed in July 2019, is facially untimely. Accordingly, the PCRA court lacked

jurisdiction over the instant petition unless Diaz pleaded and proved at least

one of the time-bar exceptions. See Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010).

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Diaz argues that the newly-discovered fact exception under section

9545(b)(1)(ii) renders his petition timely. Diaz’s Br. at 10-14. He contends

that his PCRA attorney failed to inform him that this Court dismissed his

petition on October 4, 2017. Therefore, Diaz avers that he was deprived of

the opportunity to file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

Diaz’s argument that his former PCRA counsel effectively abandoned

him constitutes a “newly-discovered fact” under section 9545(b)(1)(ii). See

Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa.Super. 2011) (holding

that “counsel’s failure to file a timely petition for allowance of appeal could be

considered a newly-discovered fact for purposes of section 9545(b)(1)(ii)”).

Further, although this Court has concluded that allegations regarding

the failure of PCRA counsel to file a petition of allowance of appeal with our

Supreme Court fall within the ambit of section 9545(b)(1)(ii), we have also

confirmed that petitioners still must comply with the timeliness requirements

of section 9545(b)(2). Id. Pursuant to the version of section 9545(b)(2) in

effect when Diaz’s claim arose, Diaz had one year in which to raise his newly-

discovered fact claim. His instant petition, filed in July 2019, was within a year

from when Diaz alleges his claim arose in November 2018.

Having concluded that Diaz timely raised the newly-discovered fact

exception, we must still consider whether he meets the requirements of that

exception. Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007).

The newly-discovered fact exception requires a petitioner to establish that:

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(1) “the facts upon which the claim was predicated were unknown;” and (2)

the facts “could not have been ascertained by the exercise of due diligence.”

42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due diligence inquiry is fact-sensitive

and dependent upon the circumstances presented.” Commonwealth v.

Burton, 121 A.3d 1063, 1070 (Pa.Super. 2015) (en banc) (footnote omitted).

“[D]ue diligence requires neither perfect vigilance nor punctilious care, but

rather it requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral relief.”

Id. at 1071.

Such a determination requires further fact-finding in this case. Bennett,

930 A.2d at 1274. Diaz did not learn that this Court had affirmed the denial

of his PCRA petition, and that his counsel had not filed a petition for allowance

of appeal, until approximately a year and a half after the fact. We cannot say

as a matter of law that his actions did not amount to due diligence under the

circumstances. A year and a half is not such an inordinate time to resolve an

appeal as to render his not asking about the status of his appeal earlier not

duly diligent. Thus, we remand for the PCRA court to conduct an evidentiary

hearing to determine whether Diaz exercised due diligence.

Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/1/2020

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