J-S13007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    SAMUEL GONZALEZ

                             Appellant                No. 456 MDA 2019


              Appeal from the PCRA Order Entered March 6, 2019
                In the Court of Common Pleas of Lebanon County
    Criminal Division at Nos.: CP-38-CR-0000632-2004; CP-38-CR-0000633-
                       2004; and CP-38-CR-0000987-2004


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                             FILED JUNE 03, 2020

        Appellant Samuel Gonzalez pro se appeals from the March 6, 2019 order

entered in the Court of Common Pleas of Lebanon County (“PCRA Court”),

which dismissed as untimely his third petition for collateral relief under the

Post Conviction Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46.        Upon

review, we affirm.

        On December 8, 2004, a jury found Appellant guilty of committing

multiple sexual offenses against two minors:       his daughter and a former

neighbor. On February 10, 2005, another jury convicted him of committing

multiple sexual offenses against a different minor who was a friend of

Appellant’s family. The trial court consolidated the cases for sentencing. On


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*   Retired Senior Judge assigned to the Superior Court.
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October 25, 2005, the court sentenced Appellant to an aggregate term of 14

to 30 years’ imprisonment and determined him to be sexually violent predator

(SVP) under Megan’s law.

      On October 16, 2006, this Court affirmed Appellant’s judgment of

sentence, and on May 25, 2007, our Supreme Court denied his petition for

allowance of appeal.    Commonwealth v. Gonzalez, 913 A.2d 941 (Pa.

Super. 2006) (unpublished memorandum), appeal denied, 926 A.2d 441

(Pa. 2007).

      On May 21, 2008, Appellant filed his first PCRA petition, arguing that his

trial counsel was ineffective for failing to (1) call witnesses to contradict

prosecution witnesses, (2) call character witnesses, and (3) object to evidence

procured by Lebanon County Children and Youth Services. On November 18,

2008, the PCRA court denied the petition. Appellant did not appeal the denial.

      On January 10, 2018, Appellant pro se filed two petitions—one

requesting the withdrawal of prior counsel and the appointment of alternative

counsel, and another seeking the transcripts from his PCRA hearing. Appellant

filed three more petitions on March 8, 2018, one to proceed in forma pauperis,

a second for withdrawal of counsel, and third for an evidentiary hearing in the

event that his other petitions were not granted. On March 21, 2018, the PCRA

court denied Appellant’s requests for transcripts, an evidentiary hearing, and




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in forma pauperis status, characterizing these three requests as an untimely

petition for PCRA relief.1

       On March 23, 2018, Appellant pro se filed a second PCRA petition,

arguing that Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), entitled

him to relief from SORNA’s registration requirements and his designation as

an SVP. The petition was denied. On February 27, 2019, Appellant pro se

filed the instant—his third—PCRA petition, alleging abandonment by all prior

counsels. On March 6, 2019, the PCRA court dismissed as untimely his third

petition. In the order, the trial court advised Appellant that “he has thirty (30)

days from today’s date in which to file an appeal of this decision with the

Pennsylvania Superior Court.”          PCRA Court Order, 3/6/19 at 4 (emphasis

added).    Appellant appealed.        The PCRA court directed Appellant to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant

complied, raising three assertions of error:

       [1.] Did the court err in failing to determine that [Appellant]
       suffered abandonment of counsel for appeal where [Appellant] did
       not speak English at the time?

       [2.] Did the court err in failing to determine if one who does not
       speak English or spoke very little was denied assistance of counsel
       for the purpose of appeal, and that the trial court failed to make
       a factual determination?

       [3.] Did the trial court err in failing to make a determination
       regarding the right of appeal where [Appellant] did not speak
       English, where counsel failed to confer with [Appellant] (through
       an interpreter), where the court only looked at the length of time,
       and where the court never considered [Appellant’s] inability to
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1  On appeal, we determined that Appellant waived his challenge to the March
21, 2018 order. Commonwealth v. Gonzalez, 203 A.3d 315 (Pa. Super.
filed December 13, 2018) (unpublished memorandum).

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       speak the English language and counsel did not speak flaunt [sic]
       Spanish? And was [Appellant’s] constitutional right of appeal
       denied under these circumstances?

Rule 1925(b) Statement, 4/4/19 (unnecessary capitalization omitted) (sic).

In response, the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that

Appellant was not entitled to relief on his untimely PCRA petition. The court

further determined that, even if the petition were not untimely, Appellant’s

claim that he could not speak or understand English was waived. He could

have raised this claim previously, but failed to do so. See 42 Pa.C.S.A. §

9544(b) (an issue is waived “if the petitioner could have raised it but failed to

do so before trial, at trial, during unitary review, on appeal or in a prior state

postconviction proceeding.”).

       On appeal,2 Appellant presents a single, compound issue for our review.

       [I.] Did the trial court err in failing to make a determination
       regarding the right of appeal. Was the standard of review followed
       where, no hearing was held for a factual determination. And
       Appellant has consistently asked the trial court to protect his right
       of appeal, due to abandonment or ineffective assistance of
       counsel.   Did counsel abandon Appellant or was ineffective
       regarding protecting his right of appeal.

Appellant’s Brief at 3 (unnecessary capitalization omitted).

       At the outset, we note that Appellant filed a single notice of appeal from

the March 6 order that resolved issues relating to three different docket

numbers. On May 2, 2019, we issued a rule to show cause why the instant


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2“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s
determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).

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appeal should not be quashed pursuant to Commonwealth v. Walker, 185

A.3d 969 (Pa. 2018).     Following Appellant’s response, we discharged the

show-cause order.

     We have explained:

     our Supreme Court held–unequivocally–that prospectively, where
     a single order resolves issues arising on more than one docket,
     separate notices of appeal must be filed for each case. The
     Supreme Court observed that the Official Note to Rule 341 of the
     Pennsylvania Rules of Appellate Procedure provides a bright-line
     mandatory instruction to practitioners to file separate notices of
     appeal, and accordingly, determined that the failure to do so
     requires the appellate court to quash the appeal. Because this
     mandate was contrary to decades of case law, the Supreme Court
     specified that the requirement would apply only to appeals filed
     after June 1, 2018, the date Walker was filed.

Commonwealth v. Nichols, 208 A.3d 1087, 1089 (Pa. Super. 2019)

(internal citations and quotation marks omitted; emphasis removed).

     Upon review, however, we decline to quash the instant appeal as the

defect in conforming with Walker resulted from Appellant “acting in

accordance with misinformation relayed to him by the trial court.”

Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019).                 In

Stansbury, our Court declined to quash an appeal pursuant to Walker where

a defendant filed one notice of appeal listing multiple docket numbers. Id. at

158. There, as here, the trial court advised a pro se defendant to file “a

written notice of appeal to the Superior Court” from a single trial court

order listing multiple docket numbers under a single caption.     Id. at 159

(emphasis in original). We concluded that the trial court had misinformed the

defendant, which amounted to a “breakdown in the court system” and excused



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the defendant’s lack of compliance with Walker. Id. at 160. Accordingly, the

instant appeal is properly before us.

      Before we may address the merits of this appeal, we must determine

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within one year of the date the claim could have been
      presented.

      (3) For purposes of this subchapter, a judgment 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.


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42   Pa.C.S.A.    §   9545(b).     Section    9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, the record reflects that the Pennsylvania Supreme Court denied

Appellant’s petition of allowance of appeal on May 25, 2007. Appellant had

up to ninety days or until August 25, 2007, to file a petition for writ of certiorari

with the United Supreme Court.        See Commonwealth v. Lark, 746 A.2d

585, 587 (Pa. 2000); U.S. Sup.Ct. R. 13 (petitioner has ninety days from

judgment of sentence to file for writ of certiorari with U.S. Supreme Court).

Because Appellant did not file a writ of certiorari, his judgment became final

on August 25, 2008.       See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Accordingly, Appellant’s current filing is facially untimely given it was filed on

February 27, 2019, more than ten years late.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. See Commonwealth v. Marshall, 947 A.2d

714, 719 (Pa. 2008). Here, Appellant has failed to allege, let alone prove, at

any stage of the proceeding any exceptions to the one-year time bar.




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Accordingly, the PCRA court did not err in dismissing as untimely his third

PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/03/2020




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