J-S27042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY DIODORO                            :
                                               :
                       Appellant               :   No. 185 EDA 2020

            Appeal from the PCRA Order Entered December 11, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005422-2010


BEFORE:      SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 23, 2020

        Appellant, Anthony Diodoro, appeals pro se from the December 11,

2019, order entered in the Court of Common Pleas of Delaware County

dismissing his fifth petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing. After a careful

review, we affirm.

        This Court has previously set forth the relevant facts and procedural

history, in part, as follows:

              On January 24, 2011, [A]ppellant entered a negotiated
        guilty plea to twenty-five consolidated counts of possession of
        child pornography. See 18 Pa.C.S.A. § 6312[(d.1)]. On June
        29, 2011, he was sentenced to a term of twelve and one half to
        twenty-five years of incarceration. [Appellant] was granted
        leave to file a motion for modification of sentence nunc pro tunc.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      A motion for modification of sentence was denied on March 1,
      2012. No appeal from [the] judgment of sentence was taken.
            On July 18, 2012, a counseled PCRA petition was filed on
      [Appellant’s] behalf by Jonathan J. Sobel, Esquire.         The
      Commonwealth responded to the petition and on May 23, 2013,
      the petition was denied. [Appellant] did not pursue his right to
      an appeal.
             On September 11, 2014, [Appellant] filed a second PCRA
      petition. The petition alleged that a sentence greater than the
      lawful maximum was imposed. See 42 Pa.C.S.A. §
      9543(a)(2)(vii). On September 30, 2014, the PCRA court issued
      a Pa.R.Crim.P. 907 notice.       [Appellant] filed a counseled
      response and the petition was dismissed as untimely on
      November 12, 2014. [Appellant] appealed to [this Court], and
      on June 18, 2015, [we] affirmed. [Appellant] filed a petition for
      allowance of appeal to the Pennsylvania Supreme Court and on
      March 17, 2016, that petition was denied.
             On April 1, 2016, [Appellant] filed his third PCRA petition.
      The petition allege[d] that he was denied the effective assistance
      of counsel when he entered his negotiated guilty plea, that an
      illegal sentence was imposed[,] and that he was convicted before
      a tribunal without jurisdiction.          See 42 Pa.C.S.A. §
      9543(a)(2)(II), (vii), (viii)....On May 9, 2016, an Order giving
      notice of the court’s intent to dismiss the petition without an
      evidentiary hearing was entered. The court informed [Appellant]
      that the petition did not satisfy the PCRA’s jurisdictional time
      requirements....The PCRA petition...was dismissed on June 7,
      2016. [Appellant appealed, and on March 28, 2017, we
      affirmed].

Commonwealth v. Diodoro, No. 1932 EDA 2016, at 1-3 (Pa.Super. filed

3/28/17) (unpublished memorandum) (quotation to record omitted).

      On September 18, 2017, PCRA counsel filed a fourth PCRA petition on

behalf of Appellant, and following notice, the PCRA court dismissed the petition

on December 28, 2017. Appellant did not file an appeal.




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       On November 1, 2019, Appellant filed the instant pro se PCRA petition,1

and the PCRA court provided Appellant with notice of its intent to dismiss the

petition without an evidentiary hearing. Appellant filed a pro se objection, and

on December 12, 2019, the PCRA court dismissed Appellant’s petition on the

basis it was untimely filed. This timely pro se appeal followed. The PCRA

court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and

consequently, no such statement was filed. However, the PCRA court filed a

Rule 1925(a) opinion.

       On appeal, Appellant sets forth the following issues in his “Statement of

the Questions Presented” (verbatim):

    1. Whether the PCRA court interfered with Appellant’s due process
       rights to meaningful appellate review by (1) failing to rule upon
       counsel’s motion to withdraw as counsel and thus, hindered
       Appellant[’s] and the court’s ability to proceed further in absence
       of a ruling, (2) failing to conduct an on the record colloquy to
       assure Appellant voluntarily and knowingly waived his right to
       counsel, (3) failing to notify Appellant of his right to appeal, and
       (4) failing to appoint counsel during the first PCRA proceeding
       after a timely amended petition was filed on Appellant’s behalf?
    2. Whether the PCRA court erred when it determined that Appellant’s
       petition did not satisfy the newly discovered fact exception?

Appellant’s Brief at 4 (suggested answers omitted).

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1  Although Appellant’s pro se petition was docketed in the lower court on
November 12, 2019, we shall deem it to have been filed on November 1, 2019,
when it was handed to prison authorities. See Pa.R.A.P. 121(a) (“A pro se
filing submitted by a prisoner incarcerated in a correctional facility is deemed
filed as of the date it is delivered to prison authorities for purposes of mailing
or placed in the institutional mailbox[.]”).



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      Preliminarily, we note our well-established standard of review:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and 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. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007) (citations

omitted).

            Pennsylvania law makes clear no court has jurisdiction to
      hear an untimely PCRA petition. The most recent amendments to
      the PCRA, effective January 16, 1996, provide a PCRA petition,
      including a second or subsequent petition, shall be filed within one
      year of the date the underlying judgment becomes final. 42
      Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

             [There are] three statutory exceptions to the timeliness
      provisions in the PCRA [that] allow for the very limited
      circumstances under which the late filing of a petition will be
      excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
      petitioner must allege and prove:
             (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.

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Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(i)-(iii)).

       Any petition invoking a timeliness exception must be filed within one

year of the date the claim could have been presented.2 42 Pa.C.S.A. §

9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and      prove    that    one    of     the   timeliness   exceptions   applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citation omitted).

       In the case sub judice, Appellant’s post-sentence motion was denied on

March 1, 2012, and he did not file a direct appeal to this Court. Consequently,

his judgment of sentence became final on March 31, 2012, upon expiration of

the thirty day period to file a direct appeal in this Court. See Pa.R.A.P. 903(a).

Appellant filed the instant petition on November 1, 2019, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1).

       This does not end our inquiry, however, as Appellant attempts to invoke

the timeliness exceptions provided for in Subsections 9545(b)(1)(i) and (ii).


____________________________________________


2 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a
timeliness exception was required to be filed within sixty days of the date the
claim could first have been presented. However, effective December 24,
2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition
invoking an exception provided in paragraph (1) shall be filed within one year
of the date the claim could have been presented.” See 42 Pa.C.S.A. §
9545(b)(2) (effective December 24, 2018). The amendment to Subsection
9545(b)(2) only applies to “claims arising on [December] 24, 2017, or
thereafter.” See id., cmt. Appellant filed his current PCRA petition on
November 1, 2019, and he averred that his claim “arose” in February of 2019
when he first learned of the “facts” underlying his timeliness exception.

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Specifically, Appellant contends that, prior to the PCRA court denying his first

PCRA petition on May 23, 2013, his counsel, Attorney Sobel, filed a motion to

withdraw his representation on March 14, 2013, due to Appellant having a

lack of sufficient funds for payment. However, he avers the PCRA court failed

to rule on the motion. He contends that all proceedings occurring thereafter

are rendered “null and void,” and he is entitled to Subsection 9545(b)(1)(i)’s

government interference exception due to the PCRA court’s alleged

interference with his right to counsel. He further contends his discovery of

the PCRA court’s failure to rule upon counsel’s motion to withdraw constitutes

a newly-discovered fact under Subsection 9545(b)(1)(ii).

      To establish the government interference exception, “Appellant was

required to plead and prove that his 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....” Commonwealth v. Chester,

586 Pa. 468, 895 A.2d 520, 523 (2006) (quotation marks and quotation

omitted) (emphasis in original).

             To establish the newly discovered fact timeliness exception
      in [Sub]section 9545(b)(1)(ii), a petitioner must 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.    Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. A petitioner must
      explain why he could not have learned the new fact(s) earlier with
      the exercise of due diligence. This rule is strictly enforced.
      Additionally, the focus of this exception is on the newly discovered


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     facts, not on a newly discovered or newly willing source for
     previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations

and quotation marks omitted).

     In the case sub judice, assuming, arguendo, Appellant met the initial

one year threshold, we agree with the PCRA court that Appellant has failed to

demonstrate that he is entitled to the timeliness exceptions provided for in

Subsections 9545(b)(1)(i) and (ii). Specifically, as the PCRA court reasoned:

            Assuming, arguendo, that the PCRA [c]ourt committed an
     error when it failed to rule on [Attorney] Sobel’s application to
     withdraw, this fact was known to [Appellant] as far back as 2013
     and certainly it could have been ascertained with the exercise of
     due diligence. Between 2013 and 2019[,] three [additional] PCRA
     petitions were filed [in this case]. [Attorney] Sobel entered the
     2014 PCRA proceedings when he filed a response [to the] 2014
     Notice of Intent to Dismiss and filed a counseled petition in 2017
     on [Appellant’s] behalf….[Appellant] claims that he only learned
     of [the] “fact” of government interference in February of 2019
     when [the PCRA court’s failure to rule on the motion to withdraw
     was included]…in [a] footnote in a Report and Recommendation
     that was entered in the Eastern District of Pennsylvania. See
     Diodoro v. Marsh, CV 18-2031, 2019 WL 1245157, (E.D. Pa.
     Feb. 26, 2019), report and recommendation adopted, CV 18-
     2031, 2019 WL 1243008 (E.D. Pa. Mar. 18, 2019).                This
     contention is absurd. First, the “interference” that he alleges is
     properly characterized as court error that occurred in 2013 and
     this “fact” was known to him [or easily could have been
     ascertained by due diligence] in 2013. It bears mentioning that
     [Appellant] hired [Attorney] Sobel repeatedly over the years and
     that he participated as counsel in subsequent PCRA proceedings.

PCRA Court Opinion, filed 1/21/20, at 6-7.

     We find no error in the PCRA court’s sound analysis.        Simply put,

regarding the PCRA court’s failure to rule on Attorney Sobel’s motion to


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withdraw, which was filed on March 14, 2013, Appellant has failed to

demonstrate that he could not raise his claim of error previously as a result of

government interference.        See Chester, supra.   Further, he has failed to

demonstrate that the facts upon which the claim was predicated were

unknown to him or could not have been ascertained by the exercise of due

diligence. See Brown, supra. Accordingly, he has not met the timeliness

exceptions set forth in Subsections 9545(b)(1)(i) and (ii).      Therefore, we

conclude the PCRA court properly dismissed Appellant’s instant PCRA petition

on the basis it was untimely filed.3

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




____________________________________________


3 To the extent Appellant contends the PCRA court erred in dismissing his fifth
PCRA petition without an evidentiary hearing, we note “[t]here is no absolute
right to an evidentiary hearing on a PCRA petition, and if the PCRA court can
determine from the record that no genuine issues of material fact exist, then
a hearing is not necessary.” Commonwealth v. Jones, 942 A.2d 903, 906
(Pa.Super. 2008). In the case sub judice, the PCRA court properly concluded
that Appellant did not raise a genuine issue of material fact, and the PCRA
court did not otherwise abuse its discretion in failing to hold a hearing.

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