Com. v. Montanez

• Court: Superior Court of Pennsylvania
• Decided: June 18, 2024
• Docket: 2154 EDA 2023
• Status: Unpublished

Opinion

J-S15034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSE MONTANEZ : : Appellant : No. 2154 EDA 2023

Appeal from the PCRA Order Entered July 21, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009463-2011

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J. *

MEMORANDUM BY COLINS, J.: FILED JUNE 18, 2024

Appellant, Jose Montanez, appeals, pro se, from the order dismissing his

third petition filed under the Post Conviction Relief Act (“PCRA”). 1 We affirm.

On February 6, 2013, Appellant was convicted by a jury of first-degree

murder, robbery, burglary, and possessing an instrument of crime 2 related to

a March 4, 2010 incident in which he stabbed a woman to death inside her

home in Philadelphia. On that same date, the trial court imposed a mandatory

sentence of life imprisonment without parole for the murder charge and

concurrent terms of years of imprisonment on the remaining charges.

Appellant did not file a post-sentence motion or a direct appeal.

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 3502(a), and 907(a), respectively. J-S15034-24

On February 6, 2014, Appellant filed a pro se PCRA petition. Counsel

was appointed to represent Appellant (“PCRA Counsel”), and PCRA Counsel

filed an amended PCRA petition on April 11, 2016. After holding an evidentiary

hearing, the PCRA court issued an order on October 20, 2016, which found

that Appellant was not entitled to the reinstatement of his direct appeal rights

and directed the Commonwealth to respond to Appellant’s remaining claim.

Order, 10/20/16. Following the Commonwealth’s submission of a response,

the PCRA court denied the PCRA petition on March 3, 2017. This Court

affirmed the denial of PCRA relief, Commonwealth v. Montanez, No. 1186

EDA 2017, 2018 WL 4907576 (Pa. Super., filed Oct. 10, 2018) (unpublished

memorandum), and our Supreme Court denied Appellant’s petition for

allowance of appeal. Commonwealth v. Montanez, 207 A.3d 904 (Pa.

2019) (table).

On June 24, 2019, Appellant filed a pro se second PCRA petition, which

the PCRA court dismissed as untimely on July 10, 2020. Appellant filed a

notice of appeal on October 13, 2020, but indicated that he was appealing to

the United States Court of Appeals for the Third Circuit from a September 22,

2020 order dismissing his petition for writ of habeas corpus. Notice of Appeal,

10/13/20. After issuing a rule to show cause, this Court quashed Appellant’s

appeal from his second PCRA petition as being taken from an order not entered

on the lower court docket. Order, No. 2348 EDA 2020, 4/5/21.

On June 8, 2021, Appellant filed a pro se motion for post-conviction DNA

testing. On January 28, 2022, the PCRA court denied this motion. Appellant

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filed a notice of appeal on May 23, 2022, which this Court quashed as

untimely. Order, No. 1517 EDA 2022, 8/22/22.

Appellant filed his instant pro se third PCRA petition on September 27,

2022. In the petition, Appellant alleged that PCRA Counsel was ineffective

based upon his deficient investigation of potential claims, remarks made at

the PCRA hearing that Appellant felt were prejudicial to his case, and PCRA

Counsel’s failure to file a brief on Appellant’s behalf. PCRA Petition, 9/27/22,

at 4. With respect to the timeliness of his petition, Appellant alleged that he

satisfied the newly discovered fact exception to the PCRA time bar, 42 Pa.C.S.

§ 9545(b)(1)(ii), citing our Supreme Court’s decision in Commonwealth v.

Bradley, 261 A.3d 381 (Pa. 2021). PCRA Petition, 9/27/22, at 3, 8.

Following the Commonwealth’s submission of a response to the petition,

the PCRA court issued notice pursuant to Pa.R.Crim.P. 907(a), advising

Appellant that it would dismiss the petition as untimely because Bradley does

not establish a right to file a second PCRA petition beyond the statute’s one-

year time bar. Rule 907(a) Notice, 5/26/23. Appellant did not file a response,

and the PCRA court filed an order on July 21, 2023, dismissing the PCRA

petition. Appellant then filed this timely appeal.3

Appellant raises the following issues for our review:

3 Appellant filed a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on August 18, 2023. The PCRA court issued a Pa.R.A.P. 1925(a) opinion on October 2, 2023.

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[1.] Does the fact that [Appellant] was not afforded a full and fair PCRA appeal as guaranteed under law excuse the one year time limit 42 Pa.C.S. § 9545?

[2.] Was PCRA Counsel assigned to [Appellant] ineffective in his representation of [Appellant] under Pa.R.Crim.P. 904(F)(2)[?]

[3.] Did [Appellant] have a right to a full and fair PCRA appeal where a review of the trial record and the evidence presented therein was also considered?

Appellant’s Brief at i-ii.

Prior to reviewing the merits of Appellant’s PCRA petition, we must first

address the PCRA court’s finding that the petition was time barred. The

PCRA’s time limitations implicate our jurisdiction and may not be altered or

disregarded in order to reach the underlying merits of a claim.

Commonwealth v. Hipps, 274 A.3d 1263, 1267 (Pa. Super. 2022);

Commonwealth v. Laboy, 230 A.3d 1134, 1137 (Pa. Super. 2020)

The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the petitioner pleads and proves

one of the following three 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

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of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

Id. 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. §

9545(b)(2).

Because Appellant did not file a direct appeal, his judgment of sentence

became final on March 8, 2013, thirty days after the date upon which he was

sentenced. 42 Pa.C.S. § 9545(b)(3) (providing that a judgment becomes final

at the conclusion of direct review “or at the expiration of time for seeking the

review”); Pa.R.A.P. 903(c)(3) (providing that when no post-sentence motion

is filed, a notice of appeal must be filed within thirty days of the imposition of

the judgment of sentence); Pa.R.Crim.P. 720(A)(3) (same). The instant PCRA

petition was filed on September 27, 2022, well beyond the one-year period in

which he could have filed a timely petition under the PCRA. 42 Pa.C.S. §

9545(b)(1).

In his PCRA petition, Appellant invoked the newly discovered fact

exception to the PCRA time-bar, citing Bradley and stating that “[t]here was

no way” that he “could have known the law” related to ineffectiveness of PCRA

counsel claims “would change.” PCRA Petition, 9/27/22, at 3, 8. 4 However,

our Supreme Court has held that “decisional law does not amount to a new

‘fact’ under section 9545(b)(1)(ii) of the PCRA” because “judicial ____________________________________________

4We note that Bradley was filed on October 20, 2021, within one year of Appellant’s filing of his third PCRA petition on September 27, 2022. See 42 Pa.C.S. § 9545(b)(2).

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determinations are not facts.” Commonwealth v. Watts, 23 A.3d 980, 986-

87 (Pa. 2011); see also Commonwealth v. Reid, 235 A.3d 1124, 1146-47

(Pa. 2020). As we have explained, “[n]othing in Bradley creates a right to

file a second PCRA petition outside the PCRA’s one-year time limit as a method

of raising ineffectiveness of PCRA counsel or permits recognition of such a

right.” Commonwealth v. Stahl, 292 A.3d 1130, 1136 (Pa. Super. 2023);

see also Commonwealth v. Branthafer, ___ A.3d ___, 2024 PA Super 67,

*5 (Pa. Super., filed Apr. 5, 2024) (“In [Bradley], our Supreme Court did not

overrule the well-established principle that a claim of ineffective assistance of

initial-PCRA counsel does not automatically overcome the PCRA jurisdictional

one-year time-bar.”). Therefore, our Supreme Court’s publication of Bradley

did not create a new fact that would permit Appellant’s filing of an untimely

PCRA petition under the Section 9545(b)(1)(ii) time-bar exception for newly

discovered facts. See Reid, 235 A.3d at 1146-47; Watts, 23 A.3d at 986-

87; Branthafer, 2024 PA Super 67, *5; Stahl, 292 A.3d at 1136.5

5 While Appellant did not invoke the time-bar exception for a retroactive constitutional right, we note our agreement with a prior panel of this Court which stated that “Bradley is properly understood as a reassessment of appellate procedure in cases involving claims for collateral relief. It is not, as section 9545(b)(1)(iii) requires, a decision by the Pennsylvania Supreme Court which recognizes a new and retroactive constitutional right outside the permissible filing period provided under the PCRA.” Commonwealth v. Dixon, No. 1145 EDA 2022, 2022 WL 17973240, *3 (Pa. Super., filed Dec. 28, 2022) (unpublished memorandum); see Pa.R.A.P. 126(b) (non- precedential Superior Court decisions filed after May 1, 2019 may be cited for their persuasive value).

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In his brief in this Court, Appellant does not rely on the publication of

Bradley, but instead on PCRA Counsel’s conduct, which Appellant alleges

resulted in him “being deprived of any consideration of his collateral claims.”

Appellant’s Brief at vii; see also id. at iii-vi, 1-3, 38-40. Citing

Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), and related cases,

Appellant argues that PCRA Counsel “completely abandoned his client” by

discarding meritorious claims in the amended first PCRA petition; failing to file

a brief in support of the amended petition; not communicating regularly with

Appellant; failing to conduct an exhaustive review of the record and address

allegedly improperly admitted and prejudicial trial evidence at the PCRA

hearing; and filing a deficient brief in this Court. Appellant’s Brief at iii-vii, 1-

3, 38-40.

This purported PCRA time-bar exception arising out of PCRA Counsel’s

conduct, raised for the first time on appeal, necessarily fails because Appellant

failed to plead it in his PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (stating

one-year time bar is absolute “unless the petition alleges and the petitioner

proves” one of the three timeliness exceptions); Commonwealth v.

Anderson, 234 A.3d 735, 738 (Pa. Super. 2020) (petitioner must successfully

plead and prove PCRA timeliness exception to evade PCRA time bar); see also

Peterson, 192 A.3d at 1132 (“Peterson has plead and proven an entitlement

to invoke the subsection 9545(b)(1)(ii) exception to permit the filing of his

second PCRA petition beyond the one-year time bar.”).

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In any event, Appellant’s reliance on Peterson is unavailing as that case

involved “ineffectiveness per se” by PCRA counsel that “completely forecloses

review of collateral claims,” permitting a PCRA petitioner to invoke the Section

9545(b)(1)(ii) timeliness exception as “a limited extension of the one-year

time requirement under circumstances when a petitioner has not had the

review to which he was entitled due to a circumstance that was beyond his

control.” Peterson, 192 A.3d at 1130 (citation omitted) (petitioner was

permitted to invoke Section 9545(b)(1)(ii) to file a second, untimely PCRA

petition where his prior PCRA counsel had filed an untimely first petition,

“completely depriv[ing him] of any consideration of his collateral claims under

the PCRA”); see also Commonwealth v. Parrish, 224 A.3d 682, 701 (Pa.

2020) (“[W]henever PCRA counsel takes any action that wholly deprives his

or her client of the right to appellate review of collateral claims, counsel will

be deemed to be ineffective per se.”). Here, by contrast, PCRA Counsel raised

claims for PCRA relief in the amended petition, which the PCRA court

addressed on the merits, and counsel then fully litigated those claims on

appeal before this Court and our Supreme Court. Therefore, Appellant was

not “completely deprived of his right to post-conviction review.” Hipps, 274

A.3d at 1271-72 (petitioner “was not wholly denied his right to post-conviction

collateral review” where the PCRA court dismissed claims for lack of merit

rather than “on the basis that [the petitioner’s] claim was undeveloped and/or

waived, or frivolous in some other regard”).

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Because Appellant has not shown that any statutory exception to the

PCRA’s one-year time bar applies to his claims of ineffective assistance of

PCRA Counsel, the PCRA court correctly held that Appellant’s third PCRA

petition was untimely. We therefore affirm the dismissal of that PCRA petition

without a hearing.

Order affirmed.

Date: 6/18/2024

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