Appeal from the PCRA Order Entered December 31, 2012, In the Court of Common Pleas of Berks County, Criminal Division, at No. CP-06-CR-0003319-1998.
BEFORE: BENDER, SHOGAN and MUSMANNO, JJ.
Appellant, Rafael Hernandez, appeals pro se from the order denying as untimely his serial petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On May 4, 1999, Appellant entered into a negotiated guilty plea where, in exchange for pleading guilty to first-degree murder and accepting a sentence of life imprisonment without the possibility of parole, the Commonwealth agreed that it would not pursue the death penalty against Appellant. In addition, the Commonwealth further agreed to dismiss pending charges which included: murder in the second degree, murder in the third degree, two counts of robbery, two counts of aggravated assault, one count of recklessly endangering another person, one count of firearms not to be carried without a license, and one count of persons not to possess, use, manufacture, control, sell or transfer firearms who had a previous criminal conviction of a felony.
The PCRA court summarized the procedural history of this case as follows:
[Appellant] entered a guilty plea on May 4, 1999 to First Degree Murder and was sentenced on the same day to life imprisonment by the Honorable Forrest G. Schaeffer (Trial Court). [Appellant] was represented by Attorney Kimberly Miles and Attorney James Polyak (collectively Plea Counsel) for all pretrial and guilty plea matters. [An untimely] post-sentence motion was filed by Plea Counsel on May 17, 1999. The motion requested that [Appellant] be allowed to withdraw his guilty plea and also for appointment of new counsel based on [Appellant's] claims of alleged ineffectiveness. On May 20, 1999 the Trial Court denied the motion to withdraw [Appellant's] guilty plea. The Trial Court also appointed Attorney Gail Chiodo (PCRA Counsel) to review [Appellant's] claims that Plea Counsel provided ineffective assistance during the guilty plea colloquy. No direct appeal was filed with the Pennsylvania Superior Court on [Appellant's] behalf.
PCRA Counsel filed a "No Merit" Letter on March 24, 2000 pursuant to the procedures set forth in Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). A Notice of Intent to Dismiss was sent to [Appellant] on March 29, 2000 and an order of dismissal was filed on June 2, 2000.1 [Appellant] filed a notice of appeal to the Pennsylvania Superior Court and Attorney Michael Dautrich (PCRA Conflict Counsel) was appointed. PCRA Conflict Counsel filed an Amended PCRA Petition on January 9, 2001 seeking to have [Appellant's] direct appeal rights reinstated nunc pro tunc.2 The Superior Court reviewed the appeal on the merits and held that Plea Counsel was not ineffective and [Appellant's] guilty plea was knowing, voluntary and intelligently given.
1 In an unpublished memorandum opinion of December 21, 2001, the Superior Court noted that the Trial Court treated the [untimely] post-sentence proceedings as if a PCRA [petition] had been filed and, therefore, decided the issues for review on the merits. 1294 MDA 2000, p. 3.
2 After an evidentiary hearing, the parties stipulated that PCRA Counsel failed to file an appeal per [Appellant's] request. 1294 MDA 2000, p. 3.
[Appellant] filed his second PCRA petition on October 24, 2002. The petition was denied on February 4, 2003. [Appellant] filed an appeal to the Superior Court. The Superior Court affirmed dismissal and held that [Appellant's] second [PCRA] petition was untimely. 783 MDA 2003. [Appellant's] third PCRA petition was filed on May 16, 2007 and dismissed as untimely by the Trial Court. The dismissal was upheld by the Superior Court (329 MDA 2008, October 6, 2008).
PCRA Court Opinion, 4/26/13, at 1-2
On April 23, 2012, Appellant filed the instant PCRA petition, and on April 27, 2012, he filed a supplemental "Memorandum of Law in Support of Post-Conviction Petition." On December 31, 2012, the PCRA court denied the ...