J-S546023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
; PENNSYLVANIA

JOSE ANTONIO SANTIAGO

Appellant : No. 3207 EDA 2018

Appeal! from the PCRA Order Entered August 27, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001744-2015,
CP-39-CR-0001949-2015, CP-39-CR-0002374-2009,
CP-39-CR-0002522-2009

BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 05, 2019

Appellant, Jose Antonio Santiago, appeals pro se from an order entered
on August 27, 2018, which memorialized his request to withdraw and,
alternatively, dismissed his petition for collateral relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon
review, we are constrained to quash this appeal.

The PCRA court accurately summarized the relevant factual
background of this case as follows:

On January 25, 2016, [Appellant] entered [guilty pleas] to
homicide by vehicie while under the influence of alcohol, driving
under the influence of alcohol, and aggravated assault by vehicle
while driving under the influence of alcohol in case [number]
1744/2015. On the same date, [Appellant] entered [guilty pleas]
to two [] counts of delivery of a controlled substance (marijuana)

 

* Retired Senior Judge assigned to the Superior Court.
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in case [number] 1949/2015. Thereafter, on April 4, 2016,
[Appellant] was sentenced to the following: [i]n case [number]
1744/2015, an aggregate sentence of not less than ten [] years
nor more than [20] years in a state correctional facility; in case
[number] 1949/2015, an aggregate sentence of not less than one
{] year nor more than two [] years in a state correctional
institution. [Appellant’s sentence at case Number 1949/2015]
was ordered to run consecutively to the sentence imposed in case
[number] 1744/2015. In addition, at the sentencing hearing, a
Gagnon II’ hearing was conducted before the [trial court] in
which [Appellant] admitted the factual basis for the probation
[violation]. [Accordingly, in] case [number] 2374/2009, [the trial
court] revoked [Appellant’s]} probation and _ resentenced
[Appellant] to a term of imprisonment of not less than one [] year
nor more than two [] years in a state correctional institution. Also,
in case [number] 2522/2009, [Appellant’s] probation was revoked
and he was resentenced to a term of imprisonment of not less
than one [] year nor more than two [] years in a state correctional
institution. All sentences [were] ordered to run consecutively to
each other.

PCRA Court Opinion, 10/29/18, at 1-2 (superfluous capitalization omitted)
(footnote added).

This Court affirmed Appellant’s judgment of sentence on June 29, 2017.
See Commonwealth v. Santiago, __A.2d__, 1459 EDA 2016 (Pa. Super.
2017) (unpublished memorandum), at 1-18 (citation omitted). Appellant did
not seek further review of this Court’s decision. Thereafter, on July 3, 2018,
Appellant filed a timely pro se PCRA petition. Appellant’s Pro Se PCRA Petition,
7/3/18, at 1-10. Counsel was subsequently appointed and filed an amended
petition on Appellant’s behalf on August 14, 2018. Appellant’s Amended PCRA

Petition, 8/14/18, at 1-4.

 

1 Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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The PCRA court conducted an evidentiary hearing regarding Appellant’s
petition on August 27, 2018. At the hearing, however, Appellant indicated
that he wished to withdraw his petition. N.T. Evidentiary Hearing, 8/27/18,
at 1-5. Thereafter, the PCRA court entered an order “withdraw[ing] and
dismissfing}” Appellant’s petition. PCRA Court Order, 8/27/18, at 1.

Appellant did not file a notice of appeal within 30 days of the court’s
August 27, 2018 order dismissing and directing the withdrawal of Appellant’s
PCRA petition. See Appellant’s Notice of Appeal, 10/8/18, at 1; see also
Pa.R.A.P. 903. As such, Appellant filed a motion requesting permission to
appeal nunc pro tunc. Appellant’s Petition to Appeal Nunc Pro Tunc, 10/8/18,
at 1-2. In his motion, Appellant argued that, in the immediate aftermath of
his PCRA hearing, he remained in Lehigh County Jail without access to a
computer or typewriter. Jd. at 1. In addition, Appellant claimed that a
subsequent transfer to SCI Phoenix on September 7, 2018 also caused
significant delay in filing his notice of appeal. Id. at 2. In view of Appellant’s
arguments, the PCRA court granted Appellant’s motion for leave to appeal
nunc pro tunc on October 29, 2018. PCRA Court Order, 10/29/18, at 1.

Our standard of review is as follows:

As a general proposition, an appellate court reviews the PCRA
court's findings to see if they are supported by the record and free
from legal error. [This Court’s] 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.
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Commonwealth v. Hammond, 953 A.2d 544, 556 (Pa. Super. 2008)
(citations and quotations omitted).

At the outset, we note that the PCRA court's orders in this case give rise
to much confusion. At the conclusion of Appellant’s PCRA hearing, the court
granted Appellant’s oral motion to withdraw his petition. N.T. Evidentiary
Hearing, 8/27/18, at 4. However, in its subsequent written order, the PCRA
court stated that Appellant’s PCRA petition “is hereby withdrawn and
dismissed.” PCRA Court Order, 8/27/18, at 1. This language results in
uncertainty as to whether the PCRA court granted Appellant’s motion to
withdraw his petition or whether it dismissed Appellant’s petition.
Nonetheless, as we conclude that Appellant is not entitled to relief under either
alternative, we address each in turn.

First, we address a scenario in which we assume that the PCRA court
granted Appellant’s motion to withdraw his PCRA petition. Pursuant to
Pa.R.Crim.P. 905(a), if the court grants leave to do so, a party may “withdraw
a petition for post-conviction collateral relief at any time.” See
Commonwealth v. Williams, 828 A.2d 981, 987-988 (Pa. 2003). If the
court grants leave to withdraw a petition and, as a result, “an issue [] raised
in a post-conviction petition [] is not pursued at a hearing” the issue “is
deemed to be waived unless the failure to pursue the issue was not knowing
and understanding.” Commonwealth v. Shaffer, 569 A.2d 360, 363 (Pa.

Super. 1990).
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At Appellant’s evidentiary hearing, he stated that he wished to withdraw
his petition. N.T. PCRA Evidentiary Hearing, 8/27/18, at 1-5. Specifically,
Appellant’s counsel explained that, in filing his PCRA petition, Appeilant’s goal
was to “[obtain] a more favorable sentence.” Id. at 3. After learning that

under the PCRA, a chalienge to the discretionary aspects of his sentence was

unavailable and that the only option was to seek the withdrawal of his guilty
pleas and “go back to square one,” Appellant elected to withdraw his petition.
Id, Thereafter, the PCRA court questioned Appellant to ensure that he did, in

fact, wish to withdraw his petition. The following interaction occurred:

THE COURT: [Wjhat would you like to say? Do you understand?

[APPELLANT]: I do. I was under the impression, when I initially
filed the PCRA that I could possibly -- I put in the PCRA to get
what was promised to me from [plea counsel], the concurrency in
the drug case, a sentence of less than what you sentenced me to.
As [PCRA counsel] stated, I guess I would have to withdraw my
whole entire guilty plea and that's not something I'm willing to do.

THE COURT: Right. And sentencing issues, while I understand
and appreciate that you were not happy, obviously, with the
number of years that I gave you, it's not a valid PCRA. So I will
allow you to withdraw your petition and I wish you luck. [O]kay.
Thank you.

Id. at 3-4. This interaction confirms that Appellant knowingly withdrew his
PCRA petition. Therefore, the claims within his original petition are waived,
and cannot now be addressed on appeal. See Pa.R.A.P. 302(a) (“fi]ssues not

raised in the lower court are waived and cannot be raised for the first time on

appeal”).
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Next, we consider Appelilant’s appeal as if the PCRA court dismissed his
PCRA petition on August 27, 2018, See PCRA Court Order, 8/27/18, at 1.
Pursuant to Pa.R.A.P 903(a), a notice of appeal “shall be filed within 30 days
after the entry of the order from which the appeal is taken.” Pa.R.A.P 903{a).
Thus, Appellant had until September 27, 2018 to file his notice of appeal.
Appellant, however, is incarcerated. As such, he is entitled to the mailbox
rule and any document is deemed “filed on the day it is placed in the hands
of prison authorities for mailing.” Commonwealth v. Patterson, 931 A.2d
710, 714 (Pa. Super. 2007). To resolve the timeliness of Appellant’s notice of
appeal, we carefully recount below the relevant procedural developments in
the case following the dismissal of Appellant’s PCRA petition.

The PCRA court conducted Appellant’s evidentiary hearing on August 27,
2018. PCRA Court Opinion, 10/29/18, at 2. Thereafter, Appellant remained
in Lehigh County Jail. Appellant’s Petition to Appeal Nunc Pro Tunc, 10/8/18,
at 2. Subsequently, on September 7, 2018, Appellant was transferred to SCI
Phoenix. Id. At that time, SCI Phoenix was “undergoing a [s]tate of
[e]mergency.” Id. Specifically, “after multiple inmates and prison staff
members were sickened as a result of exposure to a synthetic drug,” the
Pennsylvania Department of Corrections instituted a lockdown to manage the
mail. Commonwealth v. Carpio-Santiago, 2019 WL 2158819, *1, n.1. (Pa.
Super. 2019) (unpublished memorandum opinion); Appellant's Petition to
Appeal Nunc Pro Tunc, 10/8/18, at 2. Essentially, this lockdown required all

in-coming mail to be sent to an_ institution known as Smart

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Communications/PADOC in St. Petersburg, Florida. See Pennsylvania
Department of Corrections Letter, RE: Changes to Mail Procedures, 9/7/18, at
1. The institution would open the mail, scan it, and then send printed
electronic copies of the original mail to the inmate recipient. Id.

On October 23, 2018, the PCRA court received and docketed Appellant’s
notice of appeal. Appellant’s Notice of Appeal, 10/8/18, at 1. The notice itself
was dated September 14, 2018. Id. However, it included two other dates.
Id, In particular, it stated that it was “[rJecieved by [the Department of
Corrections] on October 8, 2018” and “re-mailed on October 13, 2018.” Id.
Additionally, Appellant attached a motion requesting permission to appeal
nunc pro tunc. Appellant’s Petition to Appeal Nunc Pro Tunc, 10/8/18, at 1-2.
This was also dated September 14, 2018. Id. at 2.

On October 29, 2018, the PCRA court granted Appellant’s motion for
leave to appeal nunc pro tunc. PCRA Court Order, 10/29/18, at 1. In doing
so, the court reasoned that certain “[e]xtenuating circumstances” such as
“fraud, [a] breakdown in the court’s operations, or an oversight by a
defendant’s attorney” may, at times, “justify granting a motion to file nunc
pro tunc.” PCRA Court Opinion, 10/29/18, at 3, citing Commonwealth v.
Stock, 679 A.2d 760 (Pa. 1996). Thus, the PCRA court held that, while
Appellant’s notice of appeal “appear[ed] [] untimely,” “extraordinary
circumstances” warranted the right to appeal nunc pro tunc. Id.

On June 14, 2019, this Court issued an order to show cause why the

appeal should not be quashed as untimely. On June 24, 2019, Appellant filed

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a response. Appellant enclosed his motion for Jeave to appeal nunc pro tunc,
the PCRA court’s order granting his request, and letter from John E. Wetzel,
the Secretary of Corrections, explaining the change in the mail procedures
under the prison lockdown, Response to Rule to Show Cause, 6/24/19, at 1.
By order filed on July 12, 2019, this Court discharged its show cause order
and referred the matter to the panel assigned to decide the merits of this
appeal.

As stated above, Appellant was required to file his notice of appeal on
or before September 27, 2018. See Pa.R.A.P 903(a). Herein, Appellant
argues that he filed his notice of appeal on September 14, 2018, and,
therefore, it was timely. Appeilant’s Petition to Appeal Nunc Pro Tunc,
10/8/18, at 1-2. Specifically, Appellant asserts that he “attempt[ed] to mail
the [nJotice of [a]ppeal on the initial date signed” (September 14, 2018) and
the “[t]hird party would not accept it.” Id. at 2.

Upon review, we conclude that Appellant’s claim is belied by the record
for two reasons. First, Appellant’s notice of appeal contains three separate
dates: September 14, 2018, October 8, 2018, and October 14, 2018.
Appellant’s Notice of Appeal, 10/8/18, at 1. Two dates - October 8, 2018 and
October 14, 2018 - make reference to when Appellant gave the notice of
appeal to prison authorities. Specifically, the notice states that it was
“[rleceived by [the Department of Corrections] on October 8, 2018” and
“re-mailed on October 13, 2018." Id. This statement calls into question the

veracity of Appellant’s assertion that the notice of appeal was delivered on

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September 14, 2018. Second, Appellant’s motion requesting permission to
appeal nunc pro tunc is also dated September 14, 2018, approximately two
weeks before his appellate rights terminated. Appellant’s Petition to Appeal
Nune Pro Tunc, 10/8/18, at 1-2. Because Appellant had no reason to prepare
a request to appeal nunc pro tunc on September 14, 2018 (nearly two weeks
prior to the expiration of his filing deadline), we do not credit his claim that
he delivered the notice on September 14, 2018. As the other dates contained
on his notice - October 8, 2018 and October 14, 2018 - are outside the 30
day appeal period, we hold that we must quash this appeal as untimely filed.2

Next, we consider whether “fraud or breakdown in the processes of a
court” would excuse the untimely filing. See Pa.R.A.P 105. In this case, the

PCRA court determined that Appellant alleged “[e]xtenuating circumstances

 

? Even if Appellant did, in fact, file his notice of appeal on September 14, 2018,
we conclude that this appeal is also subject to quashal under Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018). Notably, Appellant filed only one notice
of appeal, listing all four docket numbers: Criminal Information Nos.
1744-2015, 1949-2015, 2374-2009, and 2522-2009. See Appellant’s Notice
of Appeal, 10/8/18, at 1. On June 14, 2019, this Court issued a rule to show
cause why the appeal should not be quashed based upon our Supreme Court’s
decision in Walker, 185 A.3d at 977 (holding that “where a single order
resolves issues arising on more than one docket, separate notices of appeal
must be filed for each of those cases” pursuant to Pa.R.A.P. 341 and its note).
On June 28, 2019, Appellant filed a response. Appellant argued that his claims
had merit, and attached four new notices’ of appeal, all of which contain a
different docket number. Response to Rule to Show Cause, 6/28/19, at 1.
This will not salvage Appellant's appeal under Walker because, initially,
Appellant only filed one notice of appeal when he was required to file a
separate notice of appeal at each docket. See id. Thus, even though we shail
quash Appellant’s appeal because of his failure to file a timely notice of appeal,
we note that it is also subject to quashal under Walker.

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which would justify granting a motion to file nunc pro tunc.” PCRA Court’s
Opinion, 10/29/18, at 1-2. We disagree.

“[I]t has long been the law of this Commonwealth that the failure to file
a timely appeal as a result of a breakdown in the court system is an exception
to [the] general rule.” Commonwealth v. Stansbury, 2019 WL 4197218,
*1, *2 (September 5, 2019). In most instances, however, a court will find
that a breakdown has occurred due to an administrative or technical failure.
See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007)
(explaining that “courts of this Commonwealth have held that a court
breakdown occurred in instances where the trial court, at the time of
sentencing, either failed to advise Appellant of his post-sentence and appellate
rights or misadvised him’); Commonwealth v. Braykovich, 664 A.2d 133,
136-138 (Pa. Super. 1995) (holding that the failure to advise the defendant
that his post-sentence motion had been denied resulted in a breakdown in the
court system and excused an untimely filed appeal).

In this case, Appellant asserted that SCI Phoenix was undergoing a
“[s]tate of [e]mergency” with regard to “all out[-]going and in-coming mail.”
Appellant’s Petition to Appeal Nunc Pro Tunc, 10/8/18, at 1-2. This, per
Appellant, prevented him from mailing his notice of appeal in a timely manner.
Id. Appellant’s claim, again, is contradicted by the record. While it is true
that Pennsylvania Department of Corrections instituted a lockdown of all state
prisons, the lockdown ended September 9, 2018, five days before Appellant

allegedly attempted to send his notice of appeal. See Commonweatth v.

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Carpio-Santiago, 2019 WL 2158819, *1, n.3. (Pa. Super. 2019).
Furthermore, the lockdown did not interfere with out-going mail. See
Pennsylvania Department of Corrections Letter, RE: Changes to Mail
Procedures, 9/7/18, at 1. Instead, it required all in-coming mail to be sent to
an institution in St. Petersburg, Florida. Id. Thus, unlike the PCRA court, we
cannot conclude that a breakdown in the court system excused Appellant's
untimely filing.

Lastly, we address Appellant’s motion for permission to appeal nunc pro
tunc as a free-standing PCRA petition since it requested relief cognizable under
the PCRA and was filed after Appellant’s judgment of sentence became final.
See Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007),
quoting Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super.
2002) ([T]he PCRA provides the sole means for obtaining collateral review,
and ... any petition filed after the judgment of sentence becomes final will be
treated as a PCRA petition.”). Before this Court considers the merits of this
petition, however, we “must first determine whether [it was] timely filed.”
Commonwealth v. Smith, 35 A.3d 766, 768 (Pa. Super. 2001), appea/
denied 53 A.3d 77 (Pa. 2012).

The timeliness requirement for PCRA petitions “is mandatory and
jurisdictionai in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2013) (citation omitted). A PCRA petition is timely if it is “filed within one
year of the date the judgment [of sentence] becomes final.” 42 Pa.C.S.A.

§§ 9545(b)(1). “[A] judgment becomes final at the conclusion of direct

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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). Here, Appellant’s
judgment of sentence became final on July 31, 2017, 30 days after this Court’s
June 29, 2017 decision affirming his judgment of sentence. See 1 Pa.C.S.A.
§ 1908. Hence, Appeilant’s petition is manifestly untimely because it was filed
in October 2018. Therefore, unless one of the statutory exceptions to the
time-bar applies, no court may exercise jurisdiction to consider this petition.
Pursuant to 42 Pa.C.S.A. §9545(b), there are three statutory exceptions
to the timeliness provision that allow for very limited circumstances under
which the late filing of a PCRA petition will be excused. To invoke an
exception, a petitioner must allege and prove one of the following:

(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). If an exception applies, a PCRA petition
may be considered if it is 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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In this case, Appellant failed to plead or prove that one of the
above-mentioned exceptions to the PCRA time-bar apply. First, Appellant’s
nunc pro tunc request does not specifically assert any time-bar exception.
Appellant’s Petition to Appeal Nunc Pro Tunc, 10/23/18, at 1-2. Second,
although Appellant loosely asserts that “governmental interference” precluded
him from mailing his notice of appeal in a timely manner, he fails to make an
assertion of illegality on the part of the government. Id. This is fatal to his
claim. See 42 Pa.C.S.A. § 9545(b)(2)(i) (explaining that the alleged
governmental interference must violate the laws and Constitution of this
Commonwealth or the United States of America); see also Commonwealth
v. Rizvi, 166 A.3d 344, 348-349 (Pa. Super. 2017); Commonwealth v.
Bankhead, 2019 WL 3979900 *1, *3 (Pa. Super. August 23, 2019)
(explaining that, while Bankhead asserted that he was “unable at times to
access the prison library,” his petition did not qualify under the governmental
interference exception to the PCRA time-bar “without an assertion of illegality
on the part of government officials”). Thus, Appellant’s failure to plead or
prove an applicable exception to the PCRA’s time-bar deprives this Court of
jurisdiction.

Finally, in the absence of a determination that Appellant’s request to
appeal nunc pro tunc met the PCRA’s timeliness requirements or established
a statutory exception to the one-year time-bar, we reject the PCRA court’s
explanation for granting relief in this case. The PCRA court held that Appellant

cited “extraordinary circumstances which would excuse his failure to file an

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appeal within the [30-day] period.” PCRA Court Opinion, 10/30/18, at 3.
Thus, the PCRA court essentially “invoked the principle of equitable tolling” in
finding that Appellant’s petition was not untimely. Commonwealth v. Fahy,
737 A.2d 214, 222 (Pa. 1999). This was error. “A PCRA petition is not subject

to the doctrine of equitable tolling.” Id. Rather, the time restrictions of the

7

PCRA are jurisdictional, and as such, “are mandatory and interpreted literally.’
Id. Therefore, the PCRA court exceeded its authority in reaching the merits
of Appellant’s request to appeal nunc pro tunc because “in the case of the
PCRA, the time limitations are [only] extended upon satisfaction of the
exceptions found in § 9545(b)(1)(i)-(iii) and timely filing pursuant to (b)(2).”
Id.

Foregoing reasons, we are constrained to quash this appeal.

Appeal quashed.

Judge Colins joins.

President Judge Panella concurs in the result.
Judgment Entered.

 

Joseph D. Seletyn, Esd
Prothonotary

Date: 11/05/19

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