J-S77026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARIO DIAZ MALDONADO

                            Appellant                 No. 670 EDA 2014


                  Appeal from the PCRA Order March 11, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002341-1996


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 13, 2015

        Appellant Mario Diaz Maldonado appeals from the order of the

Northampton County Court of Common Pleas dismissing as untimely his

petition filed pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. § 9541 et

seq. We affirm.

        On May 16, 1997, a jury convicted Maldonado of first-degree murder1

and the trial court sentenced him to life imprisonment. On September 28,

1998, Maldonado appealed and this Court affirmed.          Commonwealth v.

Maldonado, No. 3547 Philadelphia 1997, 726 A.2d 1080 (Pa.Super. Sept.

28, 1998) (unpublished memorandum).             On January 12, 1999, the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2501.
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Pennsylvania Supreme Court denied Maldonado’s petition for allowance of

appeal. Commonwealth v. Maldonado, 734 A.2d 861 (Pa. 1999) (table).

     On August 18, 1999, Maldonado filed a timely PCRA petition and the

PCRA court appointed counsel. On April 19, 2000, after a hearing, the PCRA

court denied the petition.        This Court affirmed.     Commonwealth v.

Maldonado, No. 1626 EDA 2000, 776 A.2d 293 (Pa.Super. Jan. 4, 2001)

(unpublished memorandum).

     On April 1, 2004, Maldonado filed a second PCRA petition. The PCRA

court appointed counsel. On July 16, 2004, after a hearing, the PCRA court

denied the petition as untimely. This Court affirmed. Commonwealth v.

Maldonado, No. 2235 EDA 2004, 880 A.2d 9 (Pa.Super. May 26, 2005)

(unpublished memorandum).          On November 15, 2005, the Pennsylvania

Supreme Court denied Maldonado’s petition for allowance of appeal.

Commonwealth v. Maldonado, 889 A.2d 88 (Pa. 2005) (table).

     On October 4, 2007, Maldonado filed a third PCRA petition. The PCRA

court issued a notice of intent to dismiss the petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907 and, on January

18, 2008, it dismissed the petition as untimely.       On September 23, 2008,

this Court affirmed.     Commonwealth v. Maldonado, No. 269 EDA 2008,

963 A.2d 568 (Pa.Super. filed Sept. 23, 2008) (unpublished judgment

order).   On January 20, 2009, the Pennsylvania Supreme Court denied

Maldonado’s   petition    for   allowance   of   appeal.   Commonwealth    v.

Maldonado, 964 A.2d 894 (Pa.2009) (table).

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         On June 18, 2010, Maldonado filed a fourth PCRA petition. The PCRA

court issued a notice of intent to dismiss the petition and, on July 20, 2010,

it dismissed the petition. Maldonado did not appeal.

         On August 2, 2012, Maldonado filed a fifth PCRA petition. The PCRA

court issued a notice of intent to dismiss the petition and, on October 10,

2012, it dismissed the petition as untimely. On June 27, 2013, this Court

affirmed.    Commonwealth v. Maldonado, No. 3395 EDA 2012, 82 A.3d

473 (Pa.Super. June 27, 2013) (unpublished memorandum).

         On January 22, 2014, Maldonado filed the current PCRA petition, his

sixth.    On February 4, 2014, the PCRA court issued a notice of intent to

dismiss the petition without a hearing.          On February 26, 2014, Maldonado

filed a notice of appeal, purporting to appeal from the notice of intent to

dismiss.     On March 11, 2014, the PCRA court dismissed the petition as

untimely.2

         On March 13, 2014, the PCRA court ordered Maldonado to file a

concise statement of matters complained of on appeal pursuant to




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2
    Although Maldonado filed his appeal before the court issued a final
appealable order, i.e., the order dismissing the PCRA petition, we will treat
the notice of appeal as filed after entry of the appealable order. See
Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.”).




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Pennsylvania Rule of Appellate Procedure 1925(b).          On April 21, 2014,3

Maldonado filed his concise statement. On April 30, 2014, the PCRA Court

filed an opinion pursuant to Rule 1925(a), adopting the reasoning of its

notice of intent to dismiss.4          Pennsylvania Rule of Appellate Procedure

1925(a) Statement, filed Apr. 30, 2012.

       Pursuant to Pennsylvania law, no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa.Super.2010) (citing Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa.2003)). The PCRA provides that a petition, “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); accord Monaco, 996 A.2d at

1079; Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). A

judgment is final “at the conclusion of direct review, including discretionary

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




____________________________________________


3
  On April 16, 2014, Maldonado filed a nunc pro tunc motion for an extension
of time to file a concise statement of errors on appeal. That same day, the
trial court granted the motion, granting an additional 20 days from the date
of the order.
4
 On May 14, 2014, Maldonado filed a notice of appeal from the PCRA court’s
1925(a) opinion. On August 4, 2014, this Court quashed the appeal “as
having been taken from a purported order which is not entered upon the
appropriate docket of the lower court.” Commonwealth v. Maldonado,
No. 1631 EDA 2014 (Pa.Super. filed Aug. 4, 2014). Maldonado filed a
motion for reconsideration, which this Court denied on September 22, 2014.



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Pennsylvania, or at the expiration of time for seeking the review.”             42

Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s statute of limitations exist.             The

exceptions allow for very limited circumstances under which a court may

excuse the late filing of a PCRA petition. 42 Pa.C.S. § 9545(b)(1); Monaco,

996 A.2d at 1079.     The late filing of a petition will be excused if a petitioner

alleges and proves:

            (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. § 9545(b)(1)(i)-(iii).      If invoking an exception to the PCRA

statute of limitations, the petition must “be filed within 60 days of the date

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

      The newly-discovered evidence exception “requires a petitioner to

demonstrate he did not know the facts upon which he based his petition and

could not have learned those facts earlier by the exercise of due diligence.”

Monaco, 996 A.2d at 1080 (citing Commonwealth v. Bennett, 930 A.2d


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1264, 1271 (2007)); see also 42 Pa.C.S. § 9545(b)(1)(ii). “Due diligence

demands that the petitioner take reasonable steps to protect his own

interests.”   Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1168

(Pa.Super.2001)). In addition, “[a] petitioner must explain why he could not

have obtained the new fact(s) earlier with the exercise of due diligence.”

Id. (citing Commonwealth v. Breakiron, 781 A.2d 94, 98 (2001)).

       Further, a heightened standard applies to a second or subsequent

PCRA    petition    to    avoid   “serial        requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                           A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”          Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006).    In a second or subsequent post-conviction proceeding, “all

issues are waived except those which implicate a defendant’s innocence or

which raise the possibility that the proceedings resulting in conviction were

so unfair that a miscarriage of justice which no civilized society can tolerate

occurred.”         Commonwealth             v.     Williams,      660   A.2d    614,   618

(Pa.Super.1995).

       Maldonado’s judgment of sentence became final on August 12, 1999,

90 days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (judgment is final at the

conclusion of direct review or at the expiration of time for seeking review);

U.S. Sup. Ct. R. 13 (allowing 90 days to file a petition for writ of certiorari

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with the United States Supreme Court). Maldonado had one year from that

date, i.e., April 12, 2000, to file a timely PCRA petition. See 42 Pa.C.S. §

9545(b)(1). He did not file this PCRA petition until January 22, 2014, more

than 14 years after his judgment of conviction became final. Therefore, the

petition is facially untimely.

       Further, Maldonado fails to qualify under any of the exceptions to the

PCRA limitations period.        Maldonado maintains he qualifies for the newly-

discovered evidence exception.5            He claims his “mental incompetence”

prevented him from consulting with his counsel during trial and during prior

post-conviction proceedings and prevented him from presenting his claims in

his prior pro se PCRA petitions. Appellant’s Brief at 13. He claims he was
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5
  This is not the first time Maldonado has attempted to allege and prove an
exception to the PCRA time bar.         In his second petition, Maldonado
attempted to utilize the newly-discovered evidence exception, claiming local
newspaper articles and witness statements provided to him after his
conviction could not have been discovered because of the volume of
paperwork and because he was not fluent in English. Commonwealth v.
Maldonado, No. 2235 EDA 2004, at 4-5 (Pa.Super. filed May 26, 2005).
This Court noted the volume of paperwork did not relieve Maldonado from
the obligation to search through the records, the witness statements were
sent to him in Spanish, and he offered no explanation as to why he could not
have consulted an interpreter or sought assistance in reading the articles.
Id. In his fifth PCRA petition, Maldonado claimed he qualified for the new
constitutional right exception based on the United States Supreme Court
decision in Miller v. Alabama, --- U.S. --, 132 S.Ct. 2455, 2460 (2012),
which held that “mandatory life without parole for those under the age of 18
at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” The PCRA court dismissed this petition as
untimely and we affirmed, noting Appellant was 21 years old when he
committed the murder. Commonwealth v. Maldonado, No. 3395 EDA
2012, at 5 (Pa.Super. filed Nov. 9, 2012).



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unable to “rationally understand his present situation and to discuss relevant

facts with his [a]ttorney(s) on [c]ollateral review.” Id. The only description

provided for the alleged “mental incompetence” is that Maldonado was

unable to speak or read English and was unable to obtain translation

services until December 3, 2013. Id. at 10.

        In    Pennsylvania,   the   general   rule   is   “that   mental   illness   or

psychological condition, absent more, will not serve as an exception to the

PCRA’s jurisdictional time requirements.” Monaco, 996 A.2d at 1081 (citing

Commonwealth v. Hoffman, 780 A.2d 700, 703 (Pa.Super.2001)).                         In

support of his claim, Maldonado relies on Commonwealth v. Cruz, which

held:

             [M]ental incompetence at the relevant times, if proven,
             may satisfy the requirements of Section 9545(b)(1)(ii), in
             which case, the claims defaulted by operation of that
             incompetence may be entertained.

852 A.2d 287, 288 (Pa.2004) (emphasis deleted).               In Cruz, after killing

three individuals and injuring four others, Cruz shot himself in the head in an

attempted suicide. He entered a negotiated plea of nolo contendere to three

counts of second-degree murder. Id. At the plea hearing, the court asked

counsel why the nolo contendere plea was appropriate. Id. Counsel stated

that “during the shooting incident . . . [Cruz] actually lost part of his brain.”

Id. Counsel stated a psychiatrist described Cruz as “lobotomized” and found

Cruz was unable to “express emotions and really discuss the facts of this




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case in any sort of sensible way.” Id., at 288. The trial court accepted the

plea without determining whether Cruz was competent. Id.

       Six years later, Cruz filed a pro se PCRA petition alleging his

constitutional rights were violated and he was denied the effective assistance

of counsel. Cruz, 852 A.2d, at 289. He obtained counsel who claimed the

PCRA petition fell within the newly-discovered evidence exception to the

PCRA time bar. Id., at 290. He alleged Cruz suffered from brain damage at

the time of the plea hearing and quoted the plea hearing statements of his

plea counsel and the trial court. Id., at 289-90. Counsel claimed that it was

only within the last six months that Cruz “returned to the level of literacy

and comprehension necessary” to file the PCRA petition. Id., at 290. The

Pennsylvania Supreme Court found that “in light of the language of the

exception, the unique nature of claims sounding in incompetence, and this

Court’s discussion in [Commonwealth v. Haag, 809 A.2d 271 (Pa.2002)],6
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6
  In Haag, the Pennsylvania Supreme Court found that, where a next-friend
had been appointed in a PCRA proceeding, a court should not stay PCRA
proceedings “based upon speculation that additional claims may exist, but
are, as of now, undiscoverable” because of a defendant’s incompetence.
809 A.2d at 281.        In Haag, the PCRA petitioner was found to be
incompetent, his trial counsel was deceased, and all of counsel’s files related
to the petitioner’s case were destroyed. In a footnote, the Court noted the
petitioner may later regain his competence and wish to raise cognizable
PCRA claims known only to him, which, because of his incompetence, he was
unable to communicate to counsel or his next-friend. Id., at 280 n.11. The
Court noted that this “arguably” would qualify under the newly-discovered
evidence exception because the facts could not be known to PCRA counsel
with the exercise of due diligence. Id. The Court noted that the issue was
not ripe for review and that they “must leave it for another day.” Id.



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[Cruz] should be afforded an opportunity to attempt to prove that he was

incompetent at the relevant times and that that incompetence qualifies

under the [newly]-discovered evidence exception to the PCRA time-bar.”

Id. at 297.

     In Monaco, this Court noted that the Pennsylvania Supreme Court

found mental illness or incompetence will excuse an untimely PCRA petition

“[o]nly under a very limited circumstance.”     996 A.2d at 1080-81.      In

Monaco, this Court found the petitioner did not exercise due diligence to

discover whether he suffered from post-traumatic stress disorder and found

the petitioner’s claim did not fall within the Cruz holding because the

petitioner failed to allege his post-traumatic stress disorder “impaired his

mental ability to raise or communicate his claim.” Id. at 1082-1083.

     The defendant in Cruz presented evidence he was “lobotomized” and

presented testimony indicating a psychiatrist opined he was unable to

understand the events of the plea.          In contrast, Maldonado’s only

explanation for his mental incompetence is an alleged inability to understand

English. He presents no psychiatric or medical records diagnosing him with

a condition that would render him unable to “know the facts upon which he

based his petition.”   Monaco, 996 A.2d at 1080.       Further, he does not

explain how any alleged incompetence prevented him from learning the facts

to support his claims with the exercise of due diligence.   Id.   In fact, as

discussed above, he has previously raised claims in a timely PCRA petition

and has previously alleged his PCRA petition qualified for the newly-

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discovered    evidence   exception   because   he   was   unable   to   translate

documents.

     The PCRA court correctly found the current PCRA petition failed to

qualify under the newly-discovered evidence exception, noting that this

Court previously rejected Maldonado’s argument that the newly-discovered

evidence exception applied because he did not understand English. This was

not error. Further, Maldonado’s petition does not fall within the limited Cruz

holding.     Accordingly, we will affirm the PCRA court’s order dismissing

Maldonado’s sixth petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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