J. S42033/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
ALBERTO LEE TORRES,                       :          No. 408 MDA 2017
                                          :
                           Appellant      :


                Appeal from the PCRA Order, February 9, 2017,
               in the Court of Common Pleas of Franklin County
               Criminal Division at No. CP-28-CR-0001954-2011


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED JULY 11, 2017

      Alberto Lee Torres appeals pro se from the February 9, 2017 order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.1

      The PCRA court summarized the relevant facts and procedural history

of this case as follows:

                  The charges in this case stem from events
            following a bar fight on January 9, 2011.
            Specifically, after getting into an altercation with a
            patron inside a bar, [appellant] exited the bar and
            fired a gun at that patron. No one was injured
            during the incident.

                 As a result, [appellant] was charged with
            Aggravated Assault [Count 1], Simple Assault

1
  The Commonwealth indicated on May 30, 2017, that it will not be filing a
brief in this matter and will rely on the rationale set forth in the PCRA court’s
April 28, 2017 opinion.
J. S42033/17


             [Count 2], Recklessly Endangering Another Person
             [Count 3], Prohibited Possession of a Firearm
             [Count 4], and Prohibited Offensive Weapons
             [Count 5].[2]    On December 4, 2012, a jury
             convicted [appellant] of Counts 1, 2, 3, and 5. On
             January 2, 2013, a jury convicted [appellant] of
             Count 4.     On March 27, 2013, [appellant] was
             sentence[d] to a total of 78 to 156 months[’]
             incarceration at Counts 1, 2, 3, and 5. [Appellant]
             was also sentenced to 60 to 120 months at Count 4,
             which was ordered to run consecutively to the
             sentence at Count 1.       Overall, [appellant] was
             sentenced to an aggregate term of 138 to
             276 months at all five Counts.

                   [Appellant] filed a Post-Sentence Motion on
             April 8, 2013. Th[e trial c]ourt denied [appellant’s]
             Post-Sentence Motion on June 14, 2013. [Appellant]
             filed a Notice of Appeal on July 17, 2013.          On
             March 21, 2014, the Superior Court affirmed
             [appellant’s]  judgment      of   sentence.      [See
             Commonwealth v. Torres, 100 A.3d 315
             (Pa.Super. 2014) (unpublished memorandum),
             appeal denied, 97 A.3d 744 (Pa. 2014).]             On
             August 20, 2014, the Pennsylvania Supreme Court
             denied [appellant’s] Petition for Allowance of Appeal.
             [Id.] [Appellant] did not file a Petition for a Writ of
             Certiorari from the United States Supreme Court.

                   [Appellant] filed his [f]irst [PCRA petition] on
             November 21, 2014. Th[e PCRA c]ourt appointed
             Cayla E. Amsley, Esq. to represent [appellant] in his
             First PCRA proceedings. A hearing was held on
             May 27, 2015. On August 20, 2015, th[e PCRA
             c]ourt issued an Order and Opinion dismissing
             [appellant’s] First PCRA. [Appellant] filed a Notice of
             Appeal of this denial on September 15, 2015. The
             Superior Court affirmed th[e PCRA c]ourt’s denial of
             [appellant’s] First PCRA on May 4, 2016.          [See
             Commonwealth v. Torres, 151 A.3d 1135
             (Pa.Super. 2016) (unpublished memorandum),
             appeal denied, 158 A.3d 76 (Pa. 2016).]             On

2
    18 Pa.C.S.A. §§ 2702, 2701, 2705, 6105, and 908, respectively.


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              September 27, 2016, the Pennsylvania Supreme
              Court denied [appellant’s] Petition for Allowance of
              Appeal. [Id.]

                     [Appellant] filed his [s]econd [PCRA petition]
              on November 7, 2016, raising a claim of ineffective
              assistance of First PCRA Counsel and Trial Counsel,
              Drew Deyo, Esq. On December 9, 2016, th[e PCRA
              c]ourt issued a        Notice of Intent to Dismiss
              [appellant’s]     Second     PCRA     [pursuant      to
              Pa.R.Crim.P. 907(1)] due to untimeliness and lack of
              jurisdiction to address the merits. [Appellant] filed a
              Rule 907(1) Response on December 27, 2016.

PCRA court opinion, 4/28/17, at 1-3 (footnotes consolidated; internal case

citations added).

        On February 9, 2017, the PCRA court dismissed appellant’s instant

petition without a hearing.     Appellant filed a pro se notice of appeal on

March 3, 2017. That same day, the PCRA court ordered appellant to file a

concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b). On March 22, 2017, appellant filed a timely Rule 1925(b)

statement and the PCRA court issued its Rule 1925(a) opinion on April 28,

2017.

        Appellant raises the following issues for our review:

              1.    DID THE PCRA COURT ABUSE ITS DISCRETION
                    BY DISMISSING APPELLANT’S SECOND PCRA
                    PETITION   AS   UNTIMELY    WHERE    HE
                    SUFFICIENTLY PLED AN EXCEPTION TO THE
                    STATUTORY TIMELINESS REQUIREMENT[?]

              2.    SHOULD THIS COURT REVERSE THE PCRA
                    COURT’S ORDER DENYING THE SECOND PCRA
                    PETITION WITHOUT A HEARING, WHERE
                    APPELLANT RAISES A GENUINE ISSUE OF


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                   MATERIAL FACT AS TO WHETHER HE PLED
                   [THAT] HE ACTED DILIGENTLY[?]

            3.     DID THE PCRA COURT ERR IN NOT
                   RESTORING   APPELLANT’S  PCRA   RIGHTS
                   WHERE OBVIOUS OMISSIONS BY COUNSEL
                   RESULTED IN THE DENIAL OF MEANINGFUL
                   PCRA   REVIEW   RENDERING   THE   PCRA
                   PROCEEDINGS FUNDAMENTALLY UNFAIR[?]

Appellant’s brief at 3.

      Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”       Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).          Lastly, we note

that, “[a]lthough this Court is willing to liberally construe materials filed by a

pro se litigant, pro se status confers no special benefit upon the

appellant[.]”    Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super.

2005) (citation omitted).

      Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA



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court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted).   All PCRA petitions, including second and subsequent

petitions, must be filed within one year of when a defendant’s judgment of

sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking the review.”        42 Pa.C.S.A.

§ 9545(b)(3). If a PCRA petition is untimely, a court lacks jurisdiction over

the petition.     Commonwealth v. Callahan, 101 A.3d 118, 120-121

(Pa.Super. 2014).

         As noted, a panel of this court affirmed appellant’s judgment of

sentence on March 21, 2014, and our supreme court denied his petition for

allowance of appeal on August 20, 2014. See Commonwealth v. Torres,

100 A.3d 315 (Pa.Super. 2014) (unpublished memorandum), appeal

denied, 97 A.3d 744 (Pa. 2014).       Consequently, appellant’s judgment of

sentence became final on November 18, 2014, 90 days after our supreme

court denied appellant’s petition for allowance of appeal and the time for

filing a petition for writ of certiorari with the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13(1). In order

to comply with the filing requirements of the PCRA, appellant was required

to file his petition by November 18, 2015. See 42 Pa.C.S.A. § 9545(b)(1).

As appellant’s instant petition was not filed until November 7, 2016, it is



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patently untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in Section 9545(b)(1).

      The three narrow exceptions to the one-year time-bar are as follows:

            (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)(i-iii); Commonwealth v. Brandon, 51 A.3d

231, 233-234 (Pa.Super. 2012). The appellant bears the burden of pleading

and proving the applicability of one of these exceptions. Commonwealth

v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (some citations omitted). “In

addition, a petition invoking any of the timeliness exceptions must be filed

within 60 days of the date the claim first could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      The crux of appellant’s argument on appeal is that Attorney Amsley

was ineffective in failing to raise a specific ineffective assistance of trial


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counsel claim in his March 9, 2015 amended PCRA petition, and that this

satisfied the “newly-discovered fact” exception to the PCRA time-bar

because he was unaware that Attorney Amsley had even filed an amended

PCRA petition. (Appellant’s brief at 10-29.) We disagree.

      Generally, claims of trial counsel ineffectiveness do not operate as an

independent exception to the one-year jurisdictional time-bar of the PCRA.

See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000)

(holding a claim of ineffective assistance of counsel does not save an

otherwise     untimely     petition   for   review      on    the   merits);    see   also

Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001) (allegations of

ineffective   assistance     of   counsel    will    not     circumvent   the   timeliness

requirement of the PCRA); Commonwealth v. Bennett, 930 A.2d 1264,

1272–1273 (Pa. 2007) (holding that an allegation of PCRA counsel’s

ineffectiveness cannot be invoked as a “newly-discovered fact” exception to

the PCRA time-bar, except where PCRA counsel abandons his client on

appeal.)

      Even to the extent that appellant’s claim that Attorney Amsley was

ineffective in failing to raise the ineffective assistance of trial counsel could

arguably be addressed as a “newly-discovered fact” claim, we conclude that

appellant is still not entitled to relief.          In order to prevail on this claim,

appellant would need to demonstrate that the fact upon which the exception




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is predicated was unknown to him or that it could not have been ascertained

by the exercise of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

       Our review of the record reveals that appellant has failed to prove that

he   exercised      due   diligence   in   ascertaining    the   claims   raised   by

Attorney Amsley on his behalf in the amended PCRA petition.               The record

reveals that Attorney Amsley filed an amended petition on appellant’s behalf

on March 9, 2015, and that merely reading this petition would have alerted

him to the absence of his specific ineffective assistance of trial counsel claim.

Moreover, the record reveals that appellant was present at the May 27, 2015

PCRA hearing and would have been on notice that a specific issue was not

being addressed by Attorney Amsley.              Under Section 9545(b)(1)(ii), “due

diligence requires neither perfect vigilance nor punctilious care, but rather it

requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral

relief.”   Commonwealth v. Brown, 141 A.3d 491, 506 (Pa.Super. 2016)

(citation omitted). Clearly, appellant failed to undertake reasonable efforts

in this instance.

       As appellant’s petition, his second, is patently untimely and he has

failed to plead and prove the applicability of any exception to the PCRA’s

time-bar, the PCRA court lacked jurisdiction to consider the merits of

appellant’s claims and did not err in dismissing appellant’s petition without

an evidentiary hearing.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2017




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