J-S79001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
               v.                       :
                                        :
                                        :
 CESAR AUGUSTA FERNANDEZ                :
                                        :
                     Appellant          :   No. 665 MDA 2018

                Appeal from the PCRA Order April 2, 2018
    In the Court of Common Pleas of Berks County Criminal Division at
                     No(s): CP-06-CR-0003598-2005


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                           FILED APRIL 15, 2019

     Cesar Augusta Fernandez (“Appellant”) appeals from the denial of his

pro se petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

     The PCRA court set forth the following factual and procedural history:

           On November 15, 2006, following a jury trial, [Appellant]
     was convicted of murder of the third degree and related offenses.1
     On January 24, 2007, [Appellant] was sentenced by the Honorable
     Linda K.M. Ludgate to an aggregate term of twenty-three and one-
     half to forty-seven years of incarceration. [Appellant] appealed
     to the Superior Court of Pennsylvania, which affirmed his
     judgment of sentence on May 12, 2008. [Appellant] did not seek
     review in the Supreme Court of Pennsylvania.

           1   18 Pa.C.S.A. § 2502(c)

          Subsequently, [Appellant] sought collateral relief, which
     was denied. On or about May 5, 2017, [Appellant] filed the instant
     PCRA Petition, which is his third. This matter was reassigned to
     [Judge Eleni Geishauser] on July 10, 2017.
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Trial Court Opinion, 5/8/18, Exhibit A, Order and Notice of Intent to Dismiss,

3/8/18, at 1–2. Upon consideration of Appellant’s PCRA petition, the PCRA

court dismissed Appellant’s petition because it was patently untimely and not

subject to any exceptions.           Id.       Appellant filed a timely appeal and

both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

       Before we address Appellant’s PCRA petition, we must first dispose of

the praecipe/application for relief that Appellant filed with this Court. By way

of background, Appellant filed his appellate brief on August 22, 2018. The

Commonwealth filed its brief on November 13, 2018. Appellant, however,

did not receive a copy of the Commonwealth’s brief, despite the

Commonwealth’s assertion that it made several attempts to serve him.1 On

December 18, 2018, Appellant filed an Application for Relief with this Court

in which he asked the Court to order the Commonwealth to serve Appellant

a copy of the brief and grant him fourteen days to file his reply. Application

for Relief, 12/18/18, at unnumbered 1. Appellant also asked this Court to

prohibit the Commonwealth from utilizing its brief “during the upcoming or

any future empaneling of this Court.” Id.

       On January 7, 2019, this Court granted Appellant’s application for relief

in part, ordered the Commonwealth to re-serve its brief on Appellant, and



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1 According to the Commonwealth’s response to our January 7, 2019 Order,
there was an issue with the company responsible for copying and forwarding
mail to inmates. Commonwealth’s Response, 1/17/19, at Attachment.

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gave Appellant fourteen days from the date of service to file his reply. Order,

1/7/19. Appellant received the Commonwealth’s brief and filed his reply on

February 4, 2019.      On that date, Appellant filed a praecipe with the

Prothonotary of the Superior Court, once again asking this Court “to levy a

sanction upon the Commonwealth prohibiting [its] Appellee Brief from being

utilized during the upcoming or any future empaneling of this Court.”

Praecipe, 2/4/19, at unnumbered 1. Appellant also requested that this Court

contact the company responsible for copying and forwarding mail to inmates

to determine whether the Commonwealth attempted to “interfere in the

expeditious and proper administration of justice.” Id. at unnumbered 3. As

noted supra, Appellant received a copy of the Commonwealth’s brief and filed

a reply brief, which this Court has considered in rendering the instant

decision.      Therefore,    we    deny    Appellant’s   February    4,      2019

praecipe/application for relief.

      Turning to the instant appeal, Appellant presents the following

questions for our review (verbatim):

       I.   Did the PCRA court err and abuse it’s discretion in denying
            PCRA relief based on the fact Appellant did not prove
            applicability of 42 Pa.C.S. §9545(b)(1)(iii) did not apply,
            where claims were based under §9545(b)(1)(i)-(ii)?

      II.   Did the PCRA court err and abuse it’s discretion in finding
            Burton is not retroactive, where it involves the
            interpretation of a constitutional statute, thus automatically
            retroactive to the enactment of the statute interpreted
            [Davis v. City of Phila., 650 A.2d 1127 (Pa. Commw.
            1995)]?


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      III.   Did the PCRA court err in not granting hearing, where
             Appellant met the sixty day window pursuant to 42 Pa.C.S.
             §9545(b)(2), raising government interference and newly
             discovered fact exception, where evidence of counsel
             abandonment is apparent on the face of the record?

      IV.    Did the PCRA court err in attaching non reported case to it’s
             onpinion, where the basis of the decision has been overruled
             by Burton holding, which now holds documents in the
             public domain can constitute newly discovered fact?

Appellant’s Brief at 4.

             Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
      2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012) (citing
      Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super.
      2005)). The PCRA court’s findings will not be disturbed unless
      there is no support for the findings in the certified record. Id.
      (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
      Super. 2001)).

             It is undisputed that a PCRA petition must be filed within
      one year of the date that the judgment of sentence becomes
      final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is
      mandatory and jurisdictional in nature, and the court may not
      ignore     it  in   order   to   reach    the    merits   of   the
      petition. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201,
      203 (2000). A judgment of sentence “becomes final at the
      conclusion of direct 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).

             However, an untimely petition may be received when the
      petition alleges, and the petitioner proves, that any of the three
      limited exceptions to the time for filing the petition, set forth at 42
      Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.

Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa. Super. 2013)

(footnote omitted).


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      Before we reach the merits of Appellant’s petition, we must first

determine whether we have jurisdiction to hear Appellant’s claims. In the

instant case, following his conviction, Appellant was sentenced on January 24,

2007. He appealed his judgment of sentence to this Court on February 6,

2007, and we affirmed the judgment of sentence on April 11, 2008.

Commonwealth v. Fernandez, 953 A.2d 827, 216 MDA 2007 (Pa. Super.

filed April 11, 2008) (unpublished memorandum).        Appellant did not seek

review by the Supreme Court of Pennsylvania, and thus, his judgment of

sentence became final on May 12, 2008, when the period for seeking review

expired. Pursuant to 42 Pa.C.S. § 9545(b)(1), Appellant had until May 12,

2009, to file a timely PCRA petition. The instant petition was filed May 5,

2017, nearly eight years after the May 12, 2009 deadline; thus, it is untimely.

       A PCRA petition filed more than one year after the judgment of

sentence becomes final is untimely unless the petitioner invokes one of the

following 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

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                  period provided in this section and has been held by that
                  court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i-iii).

       Although Appellant presents four issues on appeal, he essentially is

arguing that the PCRA court erred when it found that the instant PCRA petition,

his third, was untimely filed and not subject to any of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i-iii). Appellant argues that the PCRA court erred

when it found he did not satisfy the newly discovered fact exception and the

governmental interference exception. Appellant’s Brief at 10. Specifically,

Appellant asserts the “PCRA court failed to independently review the record

evidence of Appellant’s due diligence and the applicability of the Pennsylvania

Supreme Court’s [Burton2] holding” when it determined that his PCRA

petition was untimely. Appellant’s Brief at 11.

       Appellant argues that the PCRA court erred in finding his petition

untimely because it failed to review the evidence as it related to Appellant’s

due diligence in learning that he had been abandoned by his counsel, which

Appellant avers was a newly discovered fact. Appellant’s Brief at 11. The

issue of Appellant’s due diligence in learning his counsel had abandoned him

was previously decided by this Court in Commonwealth v. Fernandez, 131



____________________________________________


2 See Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017) (holding that the
presumption that information in the public record cannot be deemed unknown
under the newly discovered exception to the PCRA does not apply to
incarcerated pro se prisoners).

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A.3d 100, 74 MDA 2015, (Pa. Super. filed August 21, 2015) (unpublished

memorandum). Therein, Appellant appealed the dismissal of his second PCRA

petition, which also was untimely. Appellant argued that his first PCRA counsel

had abandoned him and this constituted a newly discovered fact pursuant to

42 Pa.C.S. § 9545(b)(1)(ii). On appeal, this Court found that Appellant had

not exercised due diligence because, although he initially communicated with

the PCRA court about the status of his petition, he made no efforts in that

regard from June of 2010 until January of 2013, and offered no explanation

as to why he took no steps to investigate the status of his petition in the

intervening two-and-one-half-year period.          Fernandez, 74 MDA 2015,

(unpublished memorandum at *7).

       Thus, as best this Court can discern, Appellant is arguing that the PCRA

court erred in determining his petition was untimely because it refused to

revisit and reverse the already litigated issue of whether he acted with due

diligence.3 As set forth in the PCRA, in order to be eligible for relief, a petition

must show, inter alia, “[t]hat the allegation of error has not been previously

litigated or waived.” 42 Pa.C.S. § 9543(a)(3). The issue of Appellant’s due

diligence was adjudicated by this Court in response to an earlier PCRA petition,

and the PCRA court in the instant appeal did not err in refusing to revisit the


____________________________________________


3 The majority of Appellant’s reply brief is dedicated to the issue of whether
he exercised due diligence in determining that he had been abandoned by his
counsel. Appellant’s Reply Brief, 2/4/19, at unnumbered 1-5.


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issue.    See Fernandez, 74 MDA 2015 (unpublished memorandum at *4)

(“Based upon the record before us, we must conclude that [Appellant] did not

exercise due diligence.”). Appellant is attempting to re-litigate this issue and

is due no relief under the PCRA.

         Appellant also argues that the PCRA court erred when denied his PCRA

petition as untimely because Burton applies retroactively. According to

Appellant, it is “well settled law in this Commonwealth that statutory

interpretation of a statute is retroactive to the enactment of the statute.”

Appellant’s Brief at 14. Appellant misunderstands and misapplies the law.

         First, we note that even if Burton were to apply as Appellant argues, it

would not have any impact on the timeliness of his PCRA petition because this

Court previously found that Appellant failed to exercise due diligence in

determining whether his prior PCRA counsel had abandoned him, regardless

of whether Burton were to apply retroactively. Further, this Court has held

that Burton does not apply retroactively because it did not create a new

constitutional right nor was it a watershed rule of PCRA procedure.

Commonwealth v. Kretchmar, 189 A.3d 459, 463-464 (Pa. Super. 2018).

Hence, Burton is inapplicable to Appellant’s case.

         Appellant has failed to show that his third PCRA petition is subject to

any of the enumerated exceptions to the timeliness requirement. The PCRA

court did not err when it denied his untimely petition.




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     Appellant’s Praecipe/Application for Relief filed February 4, 2019, is

denied. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/15/2019




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