J-S24005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
ANDREW GONZALEZ,                            :
                                            :
                    Appellant               :           No. 833 MDA 2015

                   Appeal from the PCRA Order March 3, 2015
                 in the Court of Common Pleas of Berks County,
               Criminal Division, No(s): CP-06-CR-0005540-2005

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED MAY 23, 2016

         Andrew Gonzalez (“Gonzalez”) appeals, pro se, from the Order

dismissing his third Petition for relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). See 42 Pa.C.S.A. § 9541-9546. We affirm.

         In June 2006, following a jury trial, Gonzalez was convicted of murder

of the third degree, aggravated assault, firearms not to be carried without a

license, possessing instruments of crime, recklessly endangering another

person, and criminal conspiracy.1 The trial court sentenced Gonzalez to 20

to 40 years in prison. This Court affirmed the judgment of sentence on June

26, 2009.      See Commonwealth v. Gonzalez, 981 A.2d 312 (Pa. Super.

2009).

         Gonzalez, pro se, filed the instant Petition in September 2014, his

third.    The PCRA court issued a Notice of Intent to Dismiss the Petition.



1
    18 Pa.C.S.A. §§ 2502(c), 2702, 6106, 907, 2705 and 903.
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After receiving two extensions of time to file a response, Gonzalez requested

permission to amend his PCRA Petition. The PCRA court granted Gonzalez

leave to amend the Petition in order to explain which of the timeliness

exceptions applies. Gonzalez thereafter filed another Motion for Extension of

Time. The PCRA court denied Gonzalez’s third Motion for Extension of Time,

and dismissed the Petition as untimely on March 30, 2015. Gonzalez filed a

timely Notice of Appeal2 and a court-ordered Pa.R.A.P. 1925(b) Concise

Statement.

     On appeal, Gonzalez raises the following questions for our review:

     I. [Whether the PCRA court abused its discretion by dismissing
     Gonzalez’s Petition, where the] PCRA Petition was filed within 60
     days of the date on which [Gonzalez] came into possession of
     the complete transcript of his trial and sentencing, as well as
     pretrial discovery material, in the absence of which [Gonzalez]
     was previously prevented from seeking and obtaining meaningful
     PCRA review?

     II. [Whether the PCRA court abused its discretion by dismissing
     Gonzalez’s Petition, where,] despite granting [Gonzalez’s]
     request for an extension of time to file such an amended PCRA[
     Petition,] notwithstanding facts indicating that such an extension
     of time was warranted?



2
  Gonzalez’s Notice of Appeal was received and docketed on May 12, 2015.
However, the cover letter Gonzalez included with his Notice of Appeal is
dated April 21, 2015. Gonzalez avers that he placed his Notice of Appeal in
the hands of prison authorities on April 21, 2015, but that it was returned as
undeliverable on May 8, 2015. Because Gonzalez arguably placed his Notice
of Appeal in the hands of prison authorities before April 29, 2015, we will
consider his appeal timely filed. See Commonwealth v. Wilson, 911 A.2d
942, 944 n.2 (Pa. Super. 2006) (stating that “[p]ursuant to the prisoner
mailbox rule, a document is deemed filed when placed in the hands of prison
authorities for mailing.”) (internal quotation marks omitted).


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      III. [Whether the PCRA court abused its discretion by dismissing
      Gonzalez’s Petition, where] the facts as alleged by [Gonzalez,] if
      proven, would entitle him to relief?

Brief for Appellant at 4 (renumbered for ease of disposition).

             Our standard of review of a PCRA court’s [dismissal] of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is
      free of legal error.    The PCRA court’s findings will not be
      disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citations omitted).

      Under the PCRA, any PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]”   42 Pa.C.S.A. § 9545(b)(1) (emphasis added).          A judgment of

sentence becomes final at the conclusion of direct review or at the expiration

of time for seeking review.     Id. § 9545(b)(3).      The PCRA’s timeliness

requirements are jurisdictional in nature and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Gonzalez’s Petition is facially untimely under the PCRA.       See

Pa.C.S.A. § 9545(b).      However, Pennsylvania courts may consider an

untimely petition if the appellant can explicitly plead and prove one of three

exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition

invoking one of these exceptions “shall be filed within 60 days of the date



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the claim could have been presented.”            Id. § 9545(b)(2); Albrecht, 994

A.2d at 1094.

        In his first claim, Gonzalez attempts to invoke the government

interference     and   newly      discovered   facts   exceptions   at   42   Pa.C.S.A.

§ 9545(b)(1)(i) and (ii). Brief for Appellant at 13-16. Gonzalez argues that

his   trial   transcripts   and    other   discovery    materials   constitute   newly

discovered facts, and that he filed the Petition within 60 days of receiving

these materials. Id. at 14-15. Additionally, Gonzalez asserts that the PCRA

court’s failure to provide him with his trial and sentencing transcripts and

other    discovery     materials,     as   requested,     constitutes    governmental

interference with the presentation of his claim. Id. at 15.

        Here, Gonzalez has failed to plead and prove that either exception

applies. In regards to the newly discovered facts claim, Gonzalez’s trial and

sentencing transcripts would have been available in 2006 and made part of

the record of his direct appeal. Moreover, Gonzalez was present at both the

jury trial and at sentencing, and therefore, the trial and sentencing

transcripts are simply new sources for information previously known to him.

See Commonwealth v. Edminston, 65 A.3d 339, 352 (Pa. 2013) (stating

that, in order to constitute “facts” under Section 9545(b)(1)(ii), “the

information must not be of public record and must not be facts that were

previously known but are now presented through a newly discovered

source.”).     Even assuming that his trial and sentencing transcripts could



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constitute a “fact” under Section 9545(b)(1)(ii), Gonzalez does not attempt

to explain why any such information could not have been ascertained earlier

by the exercise of due diligence.    See 42 Pa.C.S.A. § 9545(b)(1)(ii); see

also Commonwealth v. Sattazahn, 869 A.2d 529, 534 (Pa. Super. 2005)

(stating that “in order to prevail under the newly discovered [facts]

exception, [an] [a]ppellant must plead and prove that the facts upon which

the claim is predicated were unknown to him and could not have been

ascertained earlier by the exercise of due diligence.”).

      In regards to the government interference claim, Gonzalez does not

allege any specific actions by the PCRA court that interfered with his access

to documents in the public record, nor does he explain why the information

could not have been obtained earlier through the exercise of due diligence.

See 42 Pa.C.S.A. § 9545(b)(1)(i); see also Commonwealth v. Williams,

105 A.3d 1234, 1240 (Pa. 2014) (stating that Section 9545(b)(1)(i)

“requires a petitioner to plead and prove: (1) the failure to previously raise

the claim was the result of the interference by government officials and (2)

the information on which he relies could not have been obtained earlier with

the exercise of due diligence.”). Therefore, we cannot grant Gonzalez relief

on this claim.

      In his second claim, Gonzalez argues that the PCRA court erred by

denying his third Motion for Extension of Time to file an amended PCRA

Petition. Brief for Appellant at 9-12. Gonzalez claims that the PCRA court



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overlooked circumstances beyond his control, which prevented him from

filing an amended PCRA within the first extension of time, including an

institutional lock-down and the inability of a fellow prisoner to help Gonzalez

draft his amended Petition. Id. at 11-12.

      Here, the PCRA court granted Gonzalez leave to file an amended PCRA

Petition in order to raise timeliness exceptions.     The PCRA also granted

Gonzalez’s first Motion for Extension of Time to file an amended Petition,

which Gonzalez failed to do. PCRA Court Opinion and Order, 3/30/16, at 1.

Further, Gonzalez has not raised any other exceptions to the timeliness

requirement. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999) (stating that “it is the petitioner’s burden to plead in the petition and

prove that one of the exceptions applies. That burden necessarily entails an

acknowledgement by the petitioner that the PCRA petition under review is

untimely but that one or more of the exceptions apply.”) (internal citation

omitted). Thus, Gonzalez is not entitled to relief on his second claim.

      In his third claim, Gonzalez asserts that the PCRA court erred by

dismissing his Petition without a hearing.     Brief for Appellant at 12-13.

However, a PCRA court is not required to hold an evidentiary hearing where

no exceptions are invoked. See Commonwealth v. Garcia, 23 A.3d 1059,

1066 n.9 (Pa. Super. 2011).

      Thus, the PCRA court did not err in dismissing Gonzalez’s Petition as

untimely.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2016




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