J-S77040-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
GERARDO RODRIGUEZ,                        :
                                          :
                 Appellant                :    No. 1996 EDA 2014

             Appeal from the PCRA Order Entered June 18, 2014
              in the Court of Common Pleas of Chester County,
            Criminal Division, at No(s): CP-15-CR-0004801-2009

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

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 06, 2015

      Gerardo Rodriguez (Appellant) appeals from the June 18, 2014 order

which dismissed as untimely his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      On July 7, 2010, Appellant pled guilty to three counts of possession

with intent to deliver a controlled substance. On August 12, 2010, the trial

court sentenced Appellant to an aggregate sentence of five to ten years of

imprisonment. Appellant did not file a direct appeal.

      On June 21, 2011, Appellant, through privately-retained counsel, filed

his first PCRA petition.   The petition was ultimately dismissed by order of

October 4, 2011. No appeal was filed.

      On May 29, 2014, Appellant, pro se, filed a second PCRA petition.

Therein he alleged, inter alia, that he had learned on May 5, 2014 that


*Retired Senior Judge assigned to the Superior Court.
J-S77040-14


counsel on his first PCRA petition had abandoned him by failing to file an

appeal. On June 3, 2014, the PCRA court issued a notice of intent to dismiss

as untimely Appellant’s petition without a hearing pursuant to Pa.R.Crim.P.

907. Appellant timely filed objections to the Rule 907 notice, in which he

argued that his petition was timely filed under the newly-discovered facts

exception of 42 Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007).        Notwithstanding Appellant’s objections, the

PCRA court dismissed his petition by order of June 18, 2014.              Appellant

timely filed a notice of appeal and a statement of errors complained of on

appeal.

      Appellant presents one question for this Court’s review: “Whether the

PCRA court erred by dismissing Appellant’s second PCRA [petition] as

untimely,   where   that   petition,   claiming,   inter   alia,   PCRA   counsel’s

ineffectiveness for failing to file a requested appeal, does in fact meet the

requirements of 42 Pa.C.S. § 9545.”        Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      “Our standard of review of a trial court order granting or denying relief

under the PCRA calls upon us to determine ‘whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.’”

Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (quoting

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)).




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        Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

“[T]he PCRA time restrictions are jurisdictional in nature; consequently,

Pennsylvania     courts   may    not   entertain   untimely    PCRA    petitions.”

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).

        Subsection 9545(b)(1)(ii) provides a timeliness exception if the

petitioner alleges and proves that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).

If the petitioner so alleges and proves, the petition will not be dismissed as

untimely if it was “filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

        Here, Appellant claims that the fact that counsel failed to file an appeal

from the dismissal of his first PCRA petition was unknown to him until May 5,

2014, and that he filed the instant petition within 60 days of discovering that

fact.   He argues that “his repeated attempts to learn the status of that

appeal” demonstrate that he had acted with due diligence. Appellant’s Brief

at 8.

        The PCRA court offered the following analysis of Appellant’s invocation

of subsection 9545(b)(1)(ii).




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            [Appellant] acknowledged that his pro se second PCRA
     petition was untimely, but he claimed that due to his transfers
     between prisons over the years and his respective counsels’
     alleged failures to respond to his letters and inquiries, that he
     was not able to learn of first PCRA counsel’s failure to file a
     Notice of Appeal from our October 4, 2011 dismissal of his first
     PCRA Petition until May 5, 2014, presumably when he received
     his copy of the docketing statements from the clerk of courts in
     response to his April 7, 2014 letter request, the third such
     request he made over the course of the almost four years that
     have passed since his judgment of sentence became final (the
     first having occurred February 21, 2011, following plea counsel’s
     alleged failure to file [Appellant’s] allegedly requested direct
     appeal, and the second having occurred on February 12, 2013).

            [Appellant] claimed that “[w]ith all of the transfers,
     [Appellant] only recently is getting regular access to his legal
     materials and a library. He has tried, repeatedly, to reach [first
     PCRA counsel] to inquire of the status of his appeal, to no avail.
     Petitioner has only now learned that his appeal was never filed.”

           [Appellant] described how he was transferred from S.C.I. -
     Cresson soon after our October 4, 2011 decision denying his first
     PCRA petition. He states he was transferred from S.C.I. -
     Cresson to Cambria County Jail, where he spent “nearly a year”
     before returning to S.C.I. - Cresson. S.C.I. - Cresson was
     reportedly closed shortly thereafter and he was transferred to his
     present place of incarceration, S.C.I. - Greene.

            [Appellant] attached to his petition several letters he
     allegedly wrote to his respective counsel[] over the years which
     allegedly were never answered. He attached a copy of an
     alleged notice of appeal which he claimed he drafted and mailed
     to first PCRA counsel for purposes of appeal [of] our October 4,
     2011 dismissal of his first PCRA [petition]. He also attached
     copies of the three letters requesting docketing statements from
     the Chester County clerk of courts office, one dated[ ] February
     21, 2011, one dated February 12, 2013, and the last dated April
     7, 2014. The clerk of courts responded to the first and third of
     these letters with the requested materials. [Appellant] does not
     dispute this.




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           With respect to [Appellant’s] claim about his repeated
     transfers interfering with his ability to send and receive mail so
     that he has only recently been able to glean information about
     the status of his requested appeal from our October 4, 2011
     dismissal of his first PCRA petition, [Appellant] claims that he
     was transferred from S.C.I. - Cresson to Cambria County jail
     shortly after he wrote to first PCRA counsel allegedly requesting
     that an appeal be filed on his behalf.

            From the exhibits attached to his petition, it is evident that
     he was residing in Cambria County jail by October 30, 2011 and
     remained there until roughly August of 2012, according to a
     subsequent letter addressed to first PCRA counsel on August 20,
     2012. According to his own exhibits, he remained at Cambria
     County Jail for roughly ten months without further disruption to
     his living arrangements during that time.

            He does not explain in his petition why he could not access
     a computer during these ten months in Cambria County prison
     or write, as he did on three other occasions, to the clerk of
     courts of Chester County and receive copies of his docketing
     statements during this time of relative residential stability at
     Cambria County prison. He does not aver that any prison official
     prevented him from corresponding with the court or its row
     offices. Had he taken this small step around November of 2011,
     a step which he was obviously aware, by his earlier letter to the
     clerk of courts dated February 28, 2011 (following plea counsel’s
     failure to file an allegedly requested direct appeal from his
     negotiated sentence), was an option available to him, he would
     have learned much more swiftly and definitively the status of his
     allegedly requested collateral appeal.

            Although he claims that his ability to communicate with
     first PCRA counsel Evan Kelly, Esquire was “impossible” while he
     was at Cambria County prison, he neglects to assert or explain
     why communication with the Chester County clerk of courts
     office was or would have been similarly impossible. His three
     letters to the clerk of courts over the course of two years
     reflect[] that such communication would not, in fact, have been
     impossible, or even difficult.

           Next, his correspondence reflects that he was returned to
     S.C.I. - Cresson by January 10, 2013. On October 22, 2013



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     [Appellant] wrote a final letter to first PCRA counsel still seeking
     information regarding the status of his allegedly requested
     appeal from our October 4, 2011 dismissal of his first PCRA
     Petition. It still took him another four months in which to initiate
     a new request for more recent copies of his docketing
     statements from the Clerk of Court of Chester County.

                                    ***

            [Appellant’s] claim that he has been in a “constant state of
     flux” for the last four (4) years is not entirely accurate. His
     petition avers that he had four prison transfers over the last four
     years. The first was from S.C.I - Cresson to Cambria County.
     He was transferred to Cambria County on or about October 30,
     2011. He spent ten months there, before returning to SCI -
     Cresson on or about August 20, 2012. In January of 2013, six
     months later, he was still at S.C.I. - Cresson, and presumably,
     by his own statements, once again in possession of his legal
     materials. He remained at Cresson at least another month, as
     evidenced by his February 12, 2013 letter to first PCRA counsel
     Kelly. The next letter to first PCRA counsel, dated October 22,
     2013, lists [Appellant’s] address as S.C.l. - Greene. He remains
     at S.C.I. - Greene at present. As his various letters to counsel
     and the clerk of courts demonstrate, [Appellant] spent significant
     periods of time at each prison. He was not in a “constant state
     of flux,” but rather had considerable periods of residential
     stability over the last four years.

           Even if we accept [Appellant’s] argument that he did not
     have access to his “legal materials” while at Cambria County
     prison, by the time of his return to SCI - Cresson on or about
     August 20, 2012, he would have had access to these materials.
     Indeed, by January 10, 2013 he was writing to first PCRA
     counsel Kelly with the above-captioned docket number reflected
     on his letter. Certainly by January 10, 2013, if not earlier,
     [Appellant] had access to his “legal materials” and would have
     been able to write to the clerk of courts with his docket number
     and request copies of his docketing statements, as he had done
     in February 2011, while at S.C.I. - Cresson. In fact, [Appellant]
     did write to the clerk of courts on February 12, 2013.
     Unfortunately, there is no record evidence that the clerk of
     courts office responded to him at this time. Yet instead of
     pursuing a response, [Appellant] waited more than a year before



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       writing again on April 7, 2014 with a renewed request. Despite
       our doubts as to [Appellant]’s claim that he did not have access
       to a law library or computer over the last four years at any
       prison,2 [the PCRA court] finds that [Appellant’s] failure to timely
       pursue those procedures available to him, i.e. writing to the
       clerk of courts for a copy of his docketing statement, removes
       from him the ability to rely on the due diligence exception to the
       PCRA’s timeliness requirements.
             _____
             2
                Indeed, [Appellant’s] exhibits indicate that he was aware
             and made use of S.C.I. - Cresson’s law library and staff, as
             he included multiple citations to decisional and statutory
             law in a letter he wrote to first PCRA counsel on
             September 18, 2011 regarding his first PCRA Petition, and
             he resided at S.C.I. - Cresson after he was sentenced on
             August 12, 2010 until roughly October 30, 2011 and again
             from August 20, 2012 through at least February 12, 2013,
             if the dates on his letter exhibits are accurate.

PCRA      Court   Opinion,    7/30/2014,    at   11-16    (citations,   unnecessary

capitalization, and repetition of quantities in numeral form omitted).

       The PCRA court’s determinations are supported by the record.             We

agree that Appellant failed to plead facts which demonstrate the applicability

of   an    exception   to    the   PCRA’s   one-year     time   bar.    See,   e.g.,

Commonwealth v. Monaco, 996 A.2d 1076, 1082 (Pa.Super. 2010)

(holding Monaco’s sporadic efforts were insufficient to establish due diligence

under subsection 9545(b)(1)(ii)). Accordingly, the PCRA court did not have

jurisdiction to entertain the merits of Appellant’s claims, and it properly

dismissed Appellant’s petition.

       Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/6/2015




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