Com. v. Vasquez, B.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2021
• Docket: 1237 MDA 2020
• Status: Unpublished

Opinion

J-S15015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN VASQUEZ : : Appellant : No. 1237 MDA 2020

Appeal from the PCRA Order Entered August 21, 2020 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000962-2015

BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED: AUGUST 19, 2021

Brian Vasquez appeals from the order, entered in the Court of Common

Pleas of Dauphin County, dismissing as untimely his petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon

review, we affirm.

The PCRA court set forth the history of this case as follows:

On February 12, 2018, [Vasquez pled] guilty to indecent assault[, 18 Pa.C.S.A. § 3126(a)(1)] and corruption of minors[, 18 Pa.C.S.A. § 6301(a)(1)(ii). T]he remaining charges were withdrawn by the Commonwealth as part of a negotiated plea agreement. Sentencing was deferred to April 16, 2018[,] for an evidence-based presentence risk assessment. On March 5, 2018, [Vasquez pled] guilty to [accidents involving damage to attended vehicle, failure to stop and render aid, and driving without a license] at docket number CP-22-CR-003714-2017. Sentencing was deferred [one day] to April [17, 2018,] to be consolidated with the instant docket.

[I]mmediately prior to the scheduled sentencing, [Vasquez pled] guilty to [possession of drug paraphernalia, driving without a license, and three counts of driving under the influence] at docket J-S15015-21

number CP-22-CR-0005473-2017. [Vasquez] was sentenced at the instant docket to an aggregate term of three (3) to twenty- three (23) months in Dauphin County Prison, followed by five (5) years of county probation. Based on the convictions, [Vasquez] is required to register as a Tier 1 sexual offender pursuant to the Sexual Offenders Registration and Notification Act (“SORNA”), 18 Pa.C.S.A. § 9799.10 et. seq. Time credit was applied from January 5, 2018 through March 5, 2018[,] and December 5[, 2014] through [December] 19, 2014. [Vasquez] was granted immediate parole.

[Vasquez]’s parole was revoked at Count 2 (indecent assault) and his probation revoked at Count 5 (corruption of minors) on July 15, 2019[,] for violating conditions of his parole. He was resent[enc]ed to serve his back time of seventeen (17) months, eighteen (18) days, followed by five (5) years of probation at Count 5 (corruption of minors). He was eligible for immediate parole upon an approved address. On December 9, 2019, [Vasquez]’s parole was again revoked at Count 2 (indecent assault) and he was resentenced to serve his back time of fifteen (15) months, twenty (20) days, [and the court deemed him to be] work release eligible. At Count 5, [Vasquez] was [] resentenced to five (5) years of probation consecutive to Count 2.

On January 3, 2020, [Vasquez] filed a pro se [“]motion [for] writ[] of habeas corpus[.”] In his motion, [which the court treated as a PCRA petition, Vasquez] claimed ineffective assistance of counsel for coercing him into entering a plea of guilty, as well as challenging the validity of his guilty plea on February 12, 2018. Th[e PCRA c]ourt appointed Aaron Holt, Esquire[,] as PCRA counsel. On June 11, 2020[,] Attorney Holt filed a [“no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)].

Trial Court Opinion, 7/13/20, at 1-3 (unnecessary capitalization omitted).

On July 13, 2020, the PCRA court issued its Pa.R.Crim.P 907 notice of

intent to dismiss Vasquez’s petition without a hearing and granted Attorney

Holt’s motion to withdraw. On August 19, 2020, the PCRA court dismissed

Vasquez’s petition as untimely, and on September 16, 2020, Vasquez timely

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filed his pro se notice of appeal to this Court.1 Vasquez raises the following

issues for our review:

1. Did the PCRA court abuse[] its discretion [by] dismiss[ing Vasquez’s petition] where it had jurisdiction to address the merits of the PCRA petition?

2. Was PCRA counsel ineffective for failing to thoroughly review the [] record pursuant to [Turner and Finley]?

3. Was PCRA counsel ineffective for failing to act with due diligence when as[s]erting that the petition was untimely and without merit although [the] petition has merit, and the court has jurisdiction to hear its claims?

4. Did the PCRA/trial judge abuse its discretion for not recusing himself knowing that he [h]as a conflict of interest?

5. Was [] PCRA counsel ineffective for failing to address [that] he [h]as a conflict of interest in the immediate case?

Brief of Appellant, at 11-12.

When reviewing the denial of a PCRA petition, we must determine

whether the PCRA court’s order is supported by the record and free of legal

error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018).

We are bound by a PCRA court’s credibility determinations, but with regard to

a court’s legal conclusions, we apply a de novo standard. Id. Before reaching

the issues that Vasquez raises in his appellate brief, however, we must first

ascertain whether the PCRA court correctly determined that his PCRA petition

was untimely filed. See Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.

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1 On September 25, 2020, Vasquez filed a pro se petition for immediate work

release, which the trial court denied by order dated October 6, 2020. -3- J-S15015-21

2000) (PCRA time limit is jurisdictional; court may only review untimely

petition if statutory exception applies).

Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence becomes final unless the petitioner

alleges, and proves, an exception to the time for filing the petition, set forth

at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii). 2 A PCRA petition invoking

one of these statutory exceptions must be filed within one year from the date

the claim arises. See id. at § 9545(b)(2).3 Under the PCRA, a judgment of

sentence becomes final “at the conclusion of direct review, including

2 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of interference of 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), (ii), and (iii). 3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)

to enlarge the time in which a petitioner may invoke a PCRA time-bar exception from 60 days to one year from the date the claim arises. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. However, the amendment applies only to claims arising on December 24, 2017, or thereafter. Id. at § 3. Here, Vasquez raises claims of ineffective assistance of counsel resulting in an invalid guilty plea entered on February 12, 2018. Therefore, the one-year deadline applies. -4- J-S15015-21

discretionary review in the Supreme Court of the United States and the

Supreme of Pennsylvania, or at the expiration of time for seeking the review.”

Id. at § 9545(b)(3). “When a PCRA [petition] is not filed within one year of

the expiration of direct review, or not eligible for one of the exceptions, the

[PCRA] court has no power to address the substantive merits of a petitioner’s

PCRA claims.” Commonwealth v. Shiloh, 170 A.3d 553, 557 (Pa. Super.

2017).

Instantly, Vasquez’s judgment of sentence became final on May 17,

2018, at the expiration of time for seeking review with this Court. See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Therefore, Vasquez had until May

17, 2019, to timely file his PCRA petition. The instant petition, filed on January

3, 2020, is patently untimely. In order to review the substantive merits of his

petition, Vasquez must plead and prove one of the three timeliness exceptions

to the PCRA.

Vasquez first asserts that his petition is timely under the newly-

discovered facts exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(ii). This

exception “has two components, which must be alleged and proved. Namely,

the petitioner must establish that: (1) the facts upon which the claim was

predicated were unknown; and (2) [those facts] could not have been

ascertained by the exercise of due diligence.” Commonwealth v. Bennett,

930 A.2d 1264, 1272 (Pa. 2007); 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence

requires a petitioner to take reasonable efforts to uncover facts that may

support a claim for collateral relief. Commonwealth v. Burton, 121 A.3d

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1063, 1071 (Pa. Super. 2015) (en banc). A petitioner must explain why he

could not have learned the new fact(s) earlier by exercising due diligence.

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Additionally,

the focus of this exception is on the newly-discovered facts, not on a newly-

discovered or newly-willing source for previously known facts.

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).

Specifically, in his pro se PCRA petition, Vasquez argued the applicability

of section 9545(b)(1)(ii) because, upon performing legal research on a prison-

issued tablet, he “found that [his] constitutional rights . . . were not asserted

[with] due diligence.” Pro Se PCRA Petition, 12/27/19, at 3. In his appellate

brief, Vasquez explains that he discovered “two recent cases [in which] the

Supreme Court of Pennsylvania has indicated that PCRA petitioners can raise

claims of ‘per se’ ineffectiveness of trial counsel [as a newly-discovered fact].”

Brief of Appellant, at 27 (citing Commonwealth v. Rosado, 150 A.3d 425

(Pa. 2016) and Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018)).4 ____________________________________________

4 See Rosado, supra at 428-29 (filing of appellate brief that abandons all preserved issues in favor of unpreserved issues constitutes per se ineffectiveness and warrants remand for merits review; Court must distinguish between errors which completely foreclose appellate review, which constitute ineffectiveness per se, and those that only partially foreclose such review, which are subject to four-part analysis in Strickland v. Washington, 466 U.S. 668 (1984) (emphasis in original)); see also Peterson, supra at 1130- 31 (where counsel filed PCRA petition one day late, precluding any merits or appellate review of petitioner’s claims, and PCRA court made factual findings that petitioner neither knew of counsel’s failure nor could have discovered it through reasonable diligence, section 9545(b)(1)(ii) permitted filing of PCRA petition beyond one-year time bar based on per se ineffectiveness; “the (Footnote Continued Next Page)

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It is well-settled that “decisional law does not amount to a new ‘fact’

under section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23

A.3d 980, 987 (Pa. 2011). Vasquez does not allege that he discovered any

new facts about his case; he merely argues that he discovered case law

suggesting certain petitioners may file a PCRA petition beyond the one-year

time bar based on counsel’s acts or omissions. We note, however, that the

circumstances of this case are readily distinguishable from Rosado and

Peterson where, here, unlike those cases, PCRA counsel did not commit a

procedural misstep of which Vasquez was unaware that completely precluded

review of his claims. Therefore, Rosado and Peterson are inapplicable, see

supra at n.3, and the PCRA court properly determined that Vasquez failed to

satisfy the newly-discovered fact exception to the PCRA’s time bar.5

Lastly, Vasquez alleges his PCRA petition is timely under the

governmental interference exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(i).

In his pro se PCRA petition, Vasquez claimed that:

Probation officers told me [a] one way ticket back to Dauphin County Prison was sending anything to the judge[.] I was told [at] my revo[cation hearing] that I had a time limit[, s]o I asked [probation officers] for the address to the courthouse to send a

principle . . . that PCRA counsel’s ineffectiveness cannot be advanced as a newly-discovered “fact” for purposes of . . . subsection 9545(b)(1)(ii) . . . has no application in cases where PCRA counsel’s ineffectiveness per se completely forecloses review of collateral claims.”)). 5 Vasquez concedes that “a claim that counsel was ineffective will not save an

untimely PCRA petition.” Brief of Appellant, at 19, quoting Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001).

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“PCRA” [petition]. I was scared of being sent back to [prison,] so I left it alone.

Pro Se PCRA Petition, 12/27/19, at 3.

Here, even if Vasquez’s claim possessed substantive merit, he has failed

to show how this interaction with probation officers resulted in any violation

of the United States or Pennsylvania Constitutions or laws. Brief of Appellant,

at 87-108; see also 42 Pa.C.S.A. § 9545(b)(1)(i) (governmental interference

must violate United States or Pennsylvania Constitution or laws);

Commonwealth v. Puskar, 951 A.2d 267, 293 (Pa. 2008) (appellant fails to

satisfy governmental interference exception by failing to show conditions

complained of were illegal). Furthermore, we agree with the PCRA court that

where, as here, Vasquez admits in his pro se PCRA petition that he was aware

of the PCRA’s time bar when he spoke with the probation officers, see Pro Se

PCRA Petition, 12/27/19, at 3, he has failed to offer “a reasonable explanation

why, with the exercise of due diligence, he did not ascertain this alleged

interference of government officials earlier and seek redress.”6 See

6 Vasquez notes that he reached out to the Public Defender’s office to discuss

withdrawal of his guilty plea and the filing of a Rule 600 motion. See Brief of Appellant, at 89. However, there is no indication that he reached out to his family, to the Public Defender’s Office, or to any attorney regarding the probation officer’s alleged misstatement of his appellate rights. See Rizvi, supra at 349 (appellant failed to satisfy governmental interference exception to PCRA’s time bar where he allowed one year to lapse before inquiring seriously about collateral appeal rights, never informed Department of Corrections personnel about any obstacles preventing him from understanding his appellate rights, and never attempted to contact family, friends, or lawyer to ask about any appellate rights at his disposal).

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Commonwealth v. Rizvi, 166 A.3d 344, 349 (Pa. Super. 2017) (emphasis

added).

Because Vasquez has failed to plead and prove any exception to the

PCRA’s time bar, the PCRA court did not have jurisdiction to consider his

untimely PCRA petition. Murray, supra. Thus, the PCRA court correctly

dismissed his petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/19/2021

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