J. S44005/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
ISMAEL LOPEZ,                           :         No. 2649 EDA 2015
                                        :
                       Appellant        :


              Appeal from the PCRA Order, August 28, 2015,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007646-2007


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 13, 2016

     Ismael Lopez appeals from the August 28, 2015 order of the Court of

Common Pleas of Philadelphia County denying his first petition pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, on the

grounds that his petition was untimely. We affirm.

     The PCRA court provided the following procedural history:

                 On June 11, 2008, following a jury trial before
           this Court, [appellant] was convicted of possession
           with intent to deliver a controlled substance and
           criminal conspiracy.[Footnote 2] That same day, he
           was sentenced to the mandatory minimum sentence
           of not less than five nor more than ten years in
           prison.[Footnote 3]    At [appellant’s] request, his
           sentence was stayed until July 3, 2008, so that
           [appellant] could get his affairs in order.[Footnote 4]
           When [appellant] failed to show up on July 3, a
           bench warrant was issued.           On July 9, 2008,
           [appellant’s] sentence was vacated, and a new
           sentence of ten to twenty years was imposed,
J. S44005/16


          consistent with [appellant’s] agreement.         On
          December 29, 2008, following a bench warrant
          hearing, [appellant] was taken into custody to begin
          serving his 10 to 20 year sentence.[Footnote 5]

               [Footnote 2]: 35 Pa.C.S. § 780-113(a)(30),
               18 Pa.C.S. § 903(a)(1).

               [Footnote 3]: As to the charge of criminal
               conspiracy, [appellant] was sentenced to a
               term of not less than five, nor more than
               ten years in prison, to run concurrently.

               [Footnote 4]:     At that time, this Court
               discussed      with      [appellant]     the
               consequences of his failing to appear and,
               after further discussion, [appellant] agreed
               that if he failed to surrender on July 3,
               2008, his sentence could be modified to ten
               to twenty years in prison.

               [Footnote 5]: By this time, the Court had
               lost jurisdiction to modify the sentence
               imposed on July 9, 2008.       42 Pa.C.S.
               § 5505.

                 On July 2, 2010, [appellant] filed an untimely
          pro se petition pursuant to the Post-Conviction
          Relief Act (PCRA). On March 2, 2011, PCRA counsel
          was appointed, and filed a Finley[Footnote 7] letter
          on June 10, 2011. On June 28, 2011, following an
          independent review of the record, this Court notified
          [appellant] of its intent to deny and dismiss his PCRA
          petition without a hearing pursuant to Pa.R.Crim.P.
          907 (907 Notice). [Appellant] responded to this
          Court’s 907 Notice on July 18, 2011, alleging that
          PCRA counsel was ineffective for failing to file an
          amended petition asserting claims of:        1) newly
          discovered evidence in the form of two witnesses,
          and 2) governmental interference which caused
          [appellant] to miss the PCRA filing deadline.
          [Appellant’s]    PCRA     petition  was    nonetheless
          dismissed as untimely on August 8, 2011, and
          counsel’s request to withdraw was granted.


                                  -2-
J. S44005/16



               [Footnote 7]: Commonwealth v. Finley,
               550    A.2d    213 (Pa.Super.  1988)
               [(en banc)].

                  On September 8, 2011, [appellant] filed a
           timely notice of appeal to the Superior Court. This
           Court filed an Opinion pursuant to Pa.R.A.P. 1925(a),
           in which this Court advised the Superior Court that it
           had erred in allowing counsel to withdraw without
           ensuring that he had fully investigated [appellant’s]
           belated newly discovered evidence and governmental
           interference claims, and requested that the Superior
           Court remand the case for further proceedings. On
           December 7, 2012, the Superior Court agreed, and
           vacated the dismissal of [appellant’s] PCRA petition,
           remanding it to this Court for further proceedings
           regarding the PCRA petition and appointment of new
           counsel. On February 11, 2013, new counsel was
           appointed, and filed an amended petition on
           December 4, 2014.        The Commonwealth filed a
           motion to dismiss on March 18, 2015. PCRA counsel
           responded to the Commonwealth’s motion to dismiss
           on April 6, 2015. Having reviewed the record and all
           filings, this Court sent [appellant] a 907 Notice on
           April 17, 2015, indicating that it intended to dismiss
           his petition as untimely. Thereafter, on August 28,
           2015, [appellant’s] PCRA petition was dismissed
           consistent with the 907 Notice. This timely appeal
           followed.

PCRA court opinion, 12/15/15 at 1-3 (footnotes omitted).

     Appellant raises the following issue for our review:

           Did the trial court err in denying appellant an
           evidentiary hearing when appellant raised material
           issues of fact showing that he was abandoned by
           counsel and was prevented by interference of
           government officials, in this case the Department of
           Corrections, from filing his PCRA petition within
           13 months after the date of his judgment of
           sentence and where the trial court agreed that the
           appellant had a meritorious claim?


                                    -3-
J. S44005/16



Appellant’s brief at 2.

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, 609 Pa.
            442, 17 A.3d 297, 301 (Pa. 2011) (citation omitted).
            A PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S. § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[.]”            Id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [appellant] could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [appellant] could have raised it but
            failed to so before trial, at trial, . . . on appeal or in a
            prior state postconviction proceeding.”                  Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015). Before we can

begin to address appellant’s issues on the merits, we must first determine if

we have jurisdiction to do so.

      A PCRA petitioner has one year from the date his or her judgment of

sentence becomes final in which to file a PCRA petition. This court has held

the following regarding when a judgment becomes final:



                                       -4-
J. S44005/16


            The plain language of the PCRA provides that a
            judgment of sentence becomes final at the
            conclusion of direct review or when the time for
            seeking direct review expires. See 42 Pa.C.S.A.
            § 9545(b)(3).     In fixing the date upon which a
            judgment of sentence becomes final, the PCRA does
            not refer to the conclusion of collateral review or the
            time for appealing a collateral review determination.
            Thus, the plain language of the PCRA statute shows
            that a judgment of sentence becomes final
            immediately upon expiration of the time for seeking
            direct review, even if other collateral proceedings are
            still ongoing.     As this result is not absurd or
            unreasonable, we may not look for further
            manifestations     of   legislative   intent.      See
            Commonwealth v. Hall, [80 A.3d 1204, 1211 (Pa.
            2013)] (internal quotation marks omitted) (We may
            “look beyond the plain language of the statute only
            when words are unclear or ambiguous, or the plain
            meaning would lead to a result that is absurd,
            impossible of execution or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).              In

cases where the petitioner does not exercise his right to a direct appeal with

this court, the judgment of sentence becomes final 30 days after its entry by

the trial court.1 Pa.R.A.P. 903(a).

      The PCRA enumerates several exceptions to its deadline for filing a

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:

1
  Because appellant was a fugitive from justice, and remained a fugitive from
justice, during the period in which a direct appeal could have been filed, he
forfeited his right to a direct appeal. Commonwealth v. Doty, 997 A.2d
1184, 1189 (Pa.Super. 2010).


                                      -5-
J. S44005/16



                 (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).

     In the case sub judice, appellant forfeited his direct appeal rights;

therefore, his judgment of sentence became final on or about August 8,

2008. Accordingly, the deadline for appellant to file a timely PCRA petition

was August 10, 2009.2     Appellant did not file a PCRA petition until July 2,

2010--nearly one year after the deadline to file. We shall now determine if

appellant meets any of the time bar exceptions enumerated by the PCRA.



2
 August 8, 2009, was a Saturday. Therefore, appellant’s filing deadline was
extended to the next business day, which was August 10, 2009. See
1 Pa.C.S.A. § 1908.


                                     -6-
J. S44005/16


      Despite raising only one issue on appeal, appellant is claiming two

exceptions to the time bar. First, appellant claims that Gregory J. Pagano,

Esq., his initial privately retained PCRA counsel, had “abandoned” him by

“not informing [appellant] of counsel’s conclusions [that there were no

issues of merit in appellant’s case] until after the jurisdiction of the trial

court under [the] PCRA had lapsed.”        (Appellant’s brief at 8.)   Second,

appellant avers that because he was transferred to different correctional

institutions by the Department of Corrections, he was unable to timely file a

pro se PCRA petition due to his inability to utilize the prison law libraries or

law clinics. (Id. at 8-9.)

      We shall first address appellant’s ineffective assistance of counsel

claim as it relates to Attorney Pagano.       Our cases explicitly state that

“[a]llegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”      Commonwealth v.

Fowler, 930 A.2d 586, 591 (Pa.Super. 2007), appeal denied, 944 A.2d

756 (Pa. 2008), quoting Commonwealth v. Pollard, 911 A.2d 1005, 1008

(Pa.Super. 2006); Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa.

2005).    We, therefore, do not have jurisdiction to consider appellant’s

untimely petition on the grounds of ineffective assistance of PCRA counsel.

      We shall next address appellant’s claim of governmental interference.

Here, appellant avers that he was “moved by the Department of Corrections

[] of the Commonwealth of Pennsylvania [six] times from January 2009 to



                                     -7-
J. S44005/16


[June 28, 2010] to [six] different prisons and was unable because of this to

timely file a pro se PCRA Petition . . . .”              (Appellant’s brief at 8

(capitalization omitted).)

            In order to meet the statutory requirements of the
            “governmental interference” exception to the PCRA’s
            one year jurisdictional time-bar, Appellant was
            required to plead and prove that his “failure to raise
            the claim [or claims] previously was the result of
            interference by government officials with the
            presentation of the claim [or claims] in violation of
            the Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States . . . .”

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006), quoting

42 Pa.C.S.A. § 9545(b)(1)(i) (emphasis omitted).

      In   the   instant     appeal,   appellant’s   entire   argument   regarding

governmental interference is as follows:

            In this case [appellant] was unable to secure use of
            the prison law libraries or law clinics to file a PCRA
            Petition because he was moved around so many
            times by the [Department of Corrections] which
            prevented him [a]long with the abandonment by
            counsel from filing his pro se PCRA petition until
            [June 28, 2010. Appellant] filed his pro se PCRA
            Petition within 60 days of being able to do so.

Appellant’s brief at 9 (citation omitted). At no point does appellant allege

that either a law of the Commonwealth or United States, or the Constitutions

of the Commonwealth or the United States were violated as the result of the

Department of Corrections’ transferring of appellant to different facilities. In

Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010), the Pennsylvania

Supreme Court addressed a similar claim, stating:


                                        -8-
J. S44005/16


           Further, appellant claims the restricted incarceration
           status of capital inmates, including himself,
           constitutes governmental interference because such
           restricted status limits the ability of such inmates to
           prepare pro se PCRA petitions. Appellant fails to
           show any of the conditions of his incarceration were
           illegal, as required to meet the governmental
           interference    exception    to     PCRA’s    timeliness
           requirement.      See 42 Pa.C.S. § 9545(b)(1)(i)
           (governmental interference must violate United
           States or Pennsylvania Constitution or laws).
           Accordingly, appellant has not sufficiently developed
           his claim of governmental interference.             See
           Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d
           267, 293-94 (2008) (failure to develop claim waives
           it).

Id. at 1095.   Accordingly, we find that appellant has not sufficiently pled

that the government interfered with his ability to timely file his petition

pursuant to the PCRA.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/13/2016




                                    -9-
