Com. v. Rodriguez Arevalo, C.

• Court: Superior Court of Pennsylvania
• Decided: May 31, 2024
• Docket: 670 MDA 2023
• Status: Unpublished

Opinion

J-S43021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : CESAR OBDULIO RODRIGUEZ : AREVALO : : Appellant : No. 670 MDA 2023

Appeal from the PCRA Order Entered April 20, 2023 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000167-2018

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED: MAY 31, 2024

Appellant, Cesar Obdulio Rodriguez Arevalo,1 appeals from the order

entered in the Franklin County Court of Common Pleas, which denied his

petition pursuant to the Post Conviction Relief Act (“PCRA”).2 We affirm.

The relevant facts and procedural history of this case are as follows. On

November 8, 2018, a jury convicted Appellant of two counts of attempted

involuntary deviate sexual intercourse (“IDSI”), and one count each of

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant’s name is spelled Arevalo in most court documents; however, Appellant has also spelled his name “Areralo.” (See, e.g., Pro Se Notice of Appeal, filed 5/10/23, and Proof of Service attached to Notice of Appeal). This Court has used both spellings in past decisions. Here, we elect to use the spelling “Arevalo” which was adopted by the PCRA court and used most often in Appellant’s filings.

2 42 Pa.C.S.A. §§ 9541-9546. J-S43021-23

attempted rape, indecent assault, and indecent exposure. The charges

stemmed from Appellant sexually assaulting a 29-year-old male, who is on

the Asperger’s spectrum, in the locker room of a local gym. On December 19,

2018, the court sentenced Appellant to an aggregate term of 117 to 540

months of imprisonment. This Court affirmed Appellant’s judgment of

sentence on July 31, 2019, concluding that Appellant’s claims were waived or

underdeveloped. See Commonwealth v. Arevalo, No. 96 MDA 2019

(Pa.Super. filed July 31, 2019) (unpublished memorandum). Appellant did

not seek further direct review.

Appellant filed his first PCRA petition on November 19, 2020. The PCRA

court appointed counsel (“original PCRA counsel”), who filed a motion to

withdraw and a Turner/Finley3 no merit letter. The PCRA court subsequently

issued notice of its intent to dismiss the petition without a hearing per

Pa.R.Crim.P. 907. Appellant filed a pro se response raising several issues,

including the alleged ineffectiveness of original PCRA counsel. Thereafter, the

PCRA court dismissed the petition as untimely and granted counsel’s request

to withdraw. Notably, the PCRA court had not addressed Appellant’s claims

of counsel’s ineffectiveness prior to denying PCRA relief. Appellant timely filed

a pro se appeal.

On June 7, 2022, this Court vacated and remanded for further

3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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proceedings, holding that Appellant had properly raised original PCRA

counsel’s ineffectiveness in failing to address Appellant’s claim that COVID-19

restrictions had prevented him from filing a timely PCRA petition. Therefore,

this Court remanded for the appointment of new counsel to review Appellant’s

pro se claims of original PCRA counsel’s ineffectiveness, the filing of a

supplemental brief addressing those claims, and further proceedings as the

PCRA court deemed appropriate. See Commonwealth v. Areralo,4 No. 773

MDA 2021 (Pa.Super. filed June 7, 2022) (unpublished memorandum).

Following remand, on July 27, 2022, the PCRA court appointed counsel

(“second PCRA counsel”), to represent Appellant. The PCRA court granted

second PCRA counsel’s motion for an evidentiary hearing, which the court

conducted on December 1, 2022. At the hearing, Appellant presented the

testimony of original PCRA counsel, who testified that he had communicated

with Appellant via telephone and letters. Original PCRA counsel explained that

he remembered Appellant complaining about the lack of access to the law

library during their discussions, but counsel did not find any case law on point

to excuse the untimely filing of a PCRA petition under such circumstances.

Following the hearing, the PCRA court granted Appellant’s request to file an

amended PCRA petition.

4 Unlike the prior panel addressing Appellant’s direct appeal, this decision spells Appellant’s last name as “Areralo.”

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On March 2, 2023, second PCRA counsel filed a motion to withdraw and

a Turner/Finley no merit letter. On March 14, 2023, the PCRA court issued

notice of its intent to dismiss the petition, again concluding that Appellant’s

petition was untimely. Specifically, the PCRA court explained that Appellant

had failed to prove the governmental interference exception to the PCRA time-

bar because Appellant failed to show that any condition of his incarceration,

including his alleged lack of access to the law library, was illegal.

On April 6, 2023, Appellant filed a pro se response. On April 20, 2023,

the PCRA court dismissed Appellant’s PCRA petition and granted counsel’s

motion to withdraw. Appellant timely appealed on May 5, 2023. That same

day, the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b). Appellant ultimately filed a

late concise statement of errors on July 5, 2023.5

5 In its Rule 1925(a) opinion, the PCRA court deemed Appellant’s appellate issues waived for failure to comply with the court’s Rule 1925(b) order. At the time the PCRA court issued its opinion, Appellant had still not filed any Rule 1925(b) statement. Notwithstanding its waiver analysis, the PCRA court stated in the alternative that it would rely on its earlier opinion denying PCRA relief. Because the PCRA addressed the timeliness of the PCRA petition in its earlier opinion, and because this Court could also raise the issue of jurisdiction sua sponte in any event, we decline to find Rule 1925(b) waiver under the circumstances. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009) (en banc) (stating “if there has been an untimely filing, this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal”).

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Preliminarily, we observe that the timeliness of a PCRA petition is a

jurisdictional requisite. Commonwealth v. Ballance, 203 A.3d 1027

(Pa.Super. 2019), appeal denied, 654 Pa. 600, 216 A.3d 1044 (2019). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review. 42

Pa.C.S.A. § 9545(b)(3). Generally, to obtain merits review of a PCRA petition

filed more than one year after the judgment of sentence became final, the

petitioner must allege and prove at least one of the three timeliness

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 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 invoking an exception

provided in paragraph (1) shall be filed within one year of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

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Instantly, the court sentenced Appellant on December 19, 2018. This

Court affirmed Appellant’s judgment of sentence on July 31, 2019, and

Appellant did not seek further direct review. Thus, Appellant’s judgment of

sentence became final 30 days later, on August 30, 2019. See Pa.R.A.P.

1113(a) (stating that petition for allowance of appeal in Supreme Court must

be filed “within 30 days after entry of the order...sought to be reviewed”).

See also 42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date,

or until August 30, 2020, to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b)(1). Appellant did not file the current pro se PCRA petition until

November 19, 2020, which is patently untimely. See id.

Appellant now attempts to invoke the governmental interference

exception to the PCRA time-bar, arguing that he was incarcerated in the

Franklin County Jail from August 28, 2019 through August 25, 2020, and had

no access to a law library or computers during that time due to pandemic

related restrictions. Appellant alleges that by denying his access to a law

library, the government interfered with his ability to file a timely PCRA petition.

Nevertheless, this Court has previously rejected similar claims as a basis

for overcoming the PCRA time-bar, in the absence of an assertion that the

conditions of the petitioner’s incarceration were illegal. See, e.g.,

Commonwealth v. Bankhead, 217 A.3d 1245, 1248 (Pa.Super. 2019)

(stating: “[W]ithout an assertion of illegality on the part of government

officers, restrictions on access to prison resources does not qualify a petition

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for the governmental interference exception”); Commonwealth v. Rizvi,

166 A.3d 344 (Pa.Super. 2017) (rejecting assertion of governmental

interference exception to PCRA time-bar based on prison restrictions impairing

ability to prepare pro se PCRA petition; petitioner failed to show that any of

conditions of his incarceration were illegal as required to satisfy proffered

time-bar exception); Commonwealth v. Lambing, No. 399 WDA 2022

(Pa.Super. filed Apr. 21, 2023) (unpublished memorandum), 6 appeal denied,

___ Pa. ___, 305 A.3d 960 (2023) (rejecting assertion of governmental

interference exception where appellant claimed that limited access to library

resources and his restricted housing status frustrated any efforts to

understand and invoke his rights to pursue collateral review, and where

appellant did not allege that Department of Corrections administered its

library or housing policies in violation of his rights under constitutional or state

law as required to prove exception to time-bar).

Appellant had from August 30, 2019 until August 30, 2020, to file a

timely PCRA petition. Significantly, in deciding that Appellant’s petition was

untimely, the PCRA court explained that second PCRA counsel had

investigated Appellant’s claim of lack of access to the library, and rejected

that claim in his no merit letter because, “according to the Director of Inmates

of Franklin County Jail, Franklin County Jail does have a library and [Appellant]

6 See Pa.R.A.P. 126(b) (explaining we may rely on unpublished decisions of

this Court filed after May 1, 2019 for their persuasive value).

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would have had access to it throughout his period of incarceration there.”

(PCRA Court Opinion, filed 3/14/23, at 6). Additionally, any pandemic related

restrictions would not have prevented Appellant’s access to the law library

until March 2020, at the earliest. On this record, we agree with the PCRA

court that Appellant’s self-serving assertion that he did not have access,

without more, is insufficient to prove that he was denied access in a way that

violates his constitutional rights. (See id.) For these reasons, we reject

Appellant’s assertion of the governmental interference exception. See

Bankhead, supra; Rizvi, supra. Therefore, Appellant’s petition remains

time barred.7 Accordingly, we affirm.

7 On September 5, 2023, Appellant filed a petition in this Court asking us to

remand for the PCRA court to consider Appellant’s claims of second PCRA counsel’s ineffectiveness, under Commonwealth v. Bradley, ___ Pa. ___, 261 A.3d 381 (2021) (holding that PCRA petitioner may raise claims of PCRA counsel’s ineffectiveness at first opportunity to do so, even if on appeal; requiring remand in some instances for PCRA court to evaluate such claims in first instance). Nevertheless, this Court has declined to extend the holding in Bradley to cases involving untimely or serial PCRA petitions. See, e.g., Commonwealth v. Mead, 277 A.3d 1111 (Pa.Super. 2022) (unpublished memorandum), appeal denied, ___ Pa. ___, 284 A.3d 1182 (2022) (emphasizing that Bradley involved timely first PCRA petition and did not apply to appellant’s appeal from order denying his untimely petition). Thus, we deny Appellant’s application for relief seeking remand.

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Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/31/2024

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