J-S45027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

CESAR AUGUSTA FERNANDEZ

                             Appellant                No. 74 MDA 2015


               Appeal from the PCRA Order of December 15, 2014
                 In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0003598-2005


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 21, 2015

       Cesar Augusta Fernandez appeals the December 15, 2014 order that

dismissed his petition for relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

       The PCRA Court provided the following summary of the procedural

history of this case:

       Following a jury trial, which concluded November 15, 2006,
       [Fernandez] was convicted by a jury of the following: Count 3,
       Murder of the Third Degree, 18 Pa.C.S.A. § 2502(c); Count 4,
       Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1); Count 5,
       Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(3); Count 6,
       Corrupt Organizations, 18 Pa.C.S.A. § 911(b)(4); Count 7,
       Conspiracy to Deliver (cocaine), 18 Pa.C.S.A. § 903(a)(1)(2);
       Count 8, Possession of a Controlled Substance (cocaine), 75 P.S.
       § 780-113(a)(16); Count 9, Possession of a Controlled
       Substance with Intent to Deliver (cocaine), 75 P.S. § 780-
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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     113(a)(30); and Count 10, Criminal Use of a Communications
     Facility, 18 Pa.C.S.A. § 7512. On January 24, 2007, [Fernandez]
     was sentenced to [an aggregate term of twenty-three and one-
     half to forty-seven years in prison].

     On February 2, 2007, [Fernandez], through his attorney, Todd
     Henry, Esquire, filed an appeal with the Superior Court of
     Pennsylvania, raising claims of insufficient evidence as to the
     Third Degree Murder and Corrupt Organizations charges; and a
     claim of error related to an uncharged predicate act contained on
     the verdict slip. The Superior Court affirmed the judgment of
     sentence. Commonwealth v. Fernandez, 216 MDA 2007 (Pa.
     Super. April 11, 2008). Review by the Pennsylvania Supreme
     Court was not sought. Therefore, [Fernandez’] judgment of
     sentence became final on [May] 12, 2008.

     On October 14, 2008, [Fernandez] timely filed a pro se Motion
     for Post-Conviction Collateral Relief pursuant to 42 Pa.C.S.A.
     § 9541 et seq. On October 22, 2008, J. Allen Daringer, Esquire,
     was appointed to represent [Fernandez] in matters relating to
     post-conviction relief. Attorney Daringer was ordered to file an
     amended PCRA petition or, in the alternative, file a “No Merit”
     letter pursuant to Commonwealth v. Turner, 544 A.2d 927
     (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.
     Super. 1988), detailing the reasons [Fernandez’] claims have no
     merit and this Court should allow counsel to withdraw. On
     November 25, 2008, this Court granted Attorney Daringer an
     extension of time in which to file. On January 27, 2009, an
     additional sixty (60) day extension was granted. On March 27,
     2009, Attorney Daringer filed a timely “Amended Post-Conviction
     Relief Act Petition.” On April 20, 2009, [the PCRA court] filed a
     Notice of Intent to Dismiss. On May 8, 2009, [Fernandez] filed a
     pro se motion for an extension of time to file an amended
     petition. On May 13, 2009, said motion was denied. On May 15,
     2009, the Petition for Post Conviction Relief was denied as it was
     the [o]pinion of [the PCRA court] that there were no genuine
     issues of material fact, [Fernandez] was not entitled to post
     conviction relief, and no purpose would be served by further
     proceedings.

     [Fernandez] filed a second petition, pro se, on February 22,
     2013. On March 21, 2013, [the PCRA court] filed a Notice of
     Intent to Dismiss the petition based on the petition being
     untimely and [Fernandez] failing to allege any exceptions to the
     PCRA time bar. Following [Fernandez’] response, which was filed

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        April 10, 2013, the [PCRA court] dismissed [Fernandez’] petition
        by order on April 22, 2013. [Fernandez] timely appealed the
        dismissal order by filing a Notice of Appeal on May 9, 2013. The
        Superior Court opined that [Fernandez] alleged sufficient facts to
        be entitled to a hearing on the issue and remanded this matter
        for an evidentiary hearing to determine whether [Fernandez]
        exercised due diligence in discovering whether PCRA counsel
        abandoned him. Commonwealth v. Fernandez, 832 MSA
        2013 (Pa. Super. Jan. 15, 2014). Upon receipt of the record,
        [the PCRA court] appointed new PCRA counsel and the
        evidentiary hearing was held on August 5, 2014. Thereafter, the
        parties were ordered to file briefs. On December 17, 2014, [the
        PCRA court] denied the instant petition because [Fernandez]
        failed to carry his burden to show that he exercised due diligence
        as required under the exceptions to the time bar upon which he
        was relying. [Fernandez] filed a Notice of Appeal on January 9,
        2015. [The PCRA court] ordered [Fernandez] to file a concise
        statement of errors complained of on appeal [pursuant to
        Pa.R.A.P. 1925(b),] which he filed on January 30, 2015.

PCRA Court Opinion (“P.C.O.”), 3/3/2015, at 1-3 (footnotes omitted,

citations modified). The court filed a Pa.R.A.P. 1925(a) opinion on March 3,

2015.

        Fernandez raises two issues for our review:

        1. Whether the Trial Court erred in not determining that
           [Fernandez] was “abandoned” by his former PCRA counsel?

        2. Whether the Trial Court erred in finding that [Fernandez]
           failed to exercise due diligence in discovering or determining
           that his prior court-appointed PCRA counsel abandoned him?

Fernandez’ Brief at 2.

        Our standard of review is well-settled:

        Our standard of review regarding a PCRA court’s order is
        whether the determination of the PCRA court is supported by the
        evidence of record and is free of legal error. Commonwealth v.
        Smith, 995 A.2d 1143 (Pa. 2010). The PCRA court’s findings will


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      not be disturbed unless there is no support for the findings in the
      certified record. Id.

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

(citations modified).

      Both of Fernandez’ issues relate to the invocation of an exception to

the PCRA time bar.      As a jurisdictional requirement, we must determine

whether his PCRA petition was filed timely.

      Our Supreme Court has stressed that “[t]he PCRA’s timeliness
      requirements are jurisdictional in nature and must be strictly
      construed; courts may not address the merits of the issues
      raised in a petition if it is not timely filed.” Commonwealth v.
      Abu–Jamal, 941 A.2d 1263, 1267–68 (Pa. Super. 2008)
      (citation omitted); see Commonwealth v. Monaco, 996 A.2d
      1076, 1079 (Pa. Super. 2010) (holding no court has jurisdiction
      to hear an untimely PCRA petition). It is well settled that “[a]ny
      and all PCRA petitions must be filed within one year of the date
      on which the petitioner’s judgment became final, unless one of
      three statutory exceptions applies.” Commonwealth v. Perrin,
      947 A.2d 1284, 1285 (Pa. Super. 2008) (citations, quotations,
      and quotation marks omitted). “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.” 42 Pa.C.S.A. § 9545(b)(3).

Garcia, 23 A.3d at 1061-62 (footnote omitted; citations modified).

      Instantly, Fernandez’ direct appeal was decided by this Court on April

11, 2008.   He did not seek review in our Supreme Court.        Therefore, his

judgment became final when the time in which he could have sought review




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expired, on or about May 12, 2008.1 To be filed timely, any PCRA petition

would have had to be filed on or before May 12, 2009. The instant PCRA

petition was filed on February 22, 2013, and thus, was facially untimely.

       However, untimeliness is excused when the petitioner pleads and

proves one of the three statutory 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 period provided in
       this section and has been held by that court to apply
       retroactively.

42 Pa.C.S.A. § 9545(b)(1).          Additionally, to be timely pursuant to one of

these exceptions, the PCRA petitions must be filed “within sixty days of the

date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       In his petition, Fernandez invoked the second exception. He pled that

he was never informed that his first PCRA had been dismissed and that his

attorney did not file an appeal. He alleged that he inquired about the status

of his petition from Attorney Daringer, but had received no response and
____________________________________________


1
      The thirtieth day, May 11, 2008, fell on a Sunday.          Therefore,
Fernandez had until Monday, May 12, 2008, to file for review in the Supreme
Court. See 1 Pa.C.S.A. § 1908.



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therefore, concluded that the petition was still pending. Fernandez asserted

that he did not learn that the petition had been dismissed and that no appeal

had been filed until January 2013.        PCRA Petition, 2/22/2013, at 3, 7.

Fernandez argues that this amounted to attorney abandonment, which

qualified for the “newly discovered evidence” exception to the PCRA time

bar. Fernandez’ Response to Court’s Notice of Intent to Dismiss, 4/10/2013.

      Our Supreme Court has held that attorney abandonment may

constitute a newly discovered fact sufficient to invoke that exception.

However, the petitioner must still demonstrate the he or she could not have

discovered   the    fact   sooner   through   the   exercise   of   due   diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). The PCRA

court found that Fernandez did not exercise due diligence and did not file his

petition within sixty days of learning that an appeal had not been filed. It

found as follows:

      [B]y his own admission, [Fernandez’] Exhibit No. 8, admitted
      into evidence at the evidentiary hearing on August 5, 2014,
      shows that [Fernandez] himself filed, a pro se application for
      relief in the Superior Court on May 17, 2010 and that, on June
      25, 2010, [Fernandez] was informed directly by the Superior
      Court that he had no appeal pending before that Court.
      [Fernandez] had 60 days from that date to file under the
      “unknown fact” exception, as it was from that point that he
      should have known that no appeal was filed by his PCRA counsel.
      He could have verified this fact by obtaining the public records,
      which he obviously knew how to do, as he ultimately did check
      the official court dockets. Nonetheless, he did not do that within
      the 60 day time limit. Neither did he file this PCRA petition by
      August 25 of 2010. Obviously, he knows how to file a PCRA
      petition, as this is the second one he filed pro se. Thus, since
      [Fernandez] failed to establish “due diligence” in order for the


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      second exception to apply, this court lacks jurisdiction to
      entertain [Fernandez’] second post conviction petition.

T.C.O. at 5.

      Fernandez responds that the June 2010 letter from this Court did not

start the sixty-day clock because he was still unaware that his PCRA petition

had been denied.     Fernandez argues that the June 2010 letter could have

meant that no appeal had been filed because the PCRA petition was still

pending in the Court of Common Pleas. Fernandez’ Brief at 19.

      Based upon the record before us, we must conclude that Fernandez

did not exercise 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.” Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super.

2015) (citations omitted).    Here, the record supports the conclusion that

Fernandez wrote and called Attorney Daringer on multiple occasions in 2009

and 2010.      Further, Fernandez corresponded with the PCRA court in 2009

and 2010 in an attempt to receive information on the status of his PCRA

petition.    However, after his June 2010 correspondence with this Court,

Fernandez made no further efforts until January 2013.        Fernandez has

offered no explanation as to why he took no steps to investigate the status

of his petition during that two-and-one-half year period.     Therefore, we

cannot conclude that Fernandez took reasonable steps to protect his

interests.



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      Further, even if Fernandez had attempted to provide an explanation,

the   denial of his     petition was public record.    The   courts of this

Commonwealth have made clear that matters of public record are not

“unknown” for the purposes of the exception to the PCRA time bar.       See

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (“[T]o

constitute facts which were unknown to a petitioner and could not have been

ascertained by the exercise of due diligence, the information must not be of

public record.”); Commonwealth v. Lopez, 51 A.3d 195, 196 (Pa. 2012);

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006) (“[F]or

purposes of 42 Pa.C.S. § 9545(b)(1)(ii), information is not ‘unknown’ to a

PCRA petitioner when the information was a matter of public record.”);

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007).

      Because Fernandez did not prove that the newly discovered fact

exception applies, his PCRA petition was untimely.    Therefore, neither the

PCRA court nor this Court has jurisdiction to entertain its merits and we

must affirm the PCRA court’s order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015


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