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[U] Commonwealth v. Gomez

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANCISCO JOSE GOMEZ, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANCISCO JOSE GOMEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 31, 2013 in the Court of Common Pleas of Northampton County Criminal Division at Nos.: CP-48-CR-0001336-2009, CP-48-CR-0003981-2009

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Francisco Jose Gomez, appeals from the order of May 31, 2013, which denied, following a hearing, his first petition brought under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel has filed a motion to withdraw.[1] For the reasons discussed below, we grant counsel's request to withdraw and affirm the denial of the PCRA petition as untimely.

On March 9, 2010, Appellant entered a guilty plea to two counts of driving under the influence (DUI), [2] one count of public drunkenness, [3] and one count of careless driving, [4] in satisfaction of the charges at cases CP-48-CR-1336-2009 and CP-48-CR-3981-2009. Appellant moved for immediate sentencing and the trial court sentenced him to an aggregate term of incarceration of not less than six months nor more than ten years. Appellant did not file any post-sentence motions and did not file a direct appeal.

On November 19, 2012, Appellant, acting pro se, filed a motion to withdraw his guilty plea. The trial court deemed the motion to be a PCRA petition and appointed counsel. Despite the appointment of counsel, Appellant filed a pro se amended PCRA petition on December 20, 2012. On May 10, 2013, the PCRA court held an evidentiary hearing. Following the hearing, by order of May 31, 2013, the PCRA court denied the petition as untimely. (See Order, 5/31/13, at unnumbered p. 1). The instant, timely appeal followed.[5]

On appeal, Appellant raises the following question for our review.

A. Whether an appeal of a denial of a PCRA petition filed well beyond the one-year time limit and where no exception exists is frivolous such that appointed counsel should be granted permission to withdraw?

(Appellant's Brief, at 5).

Here, Appellant's court-appointed counsel has petitioned this Court for permission to withdraw and has submitted a Turner/Finley-compliant brief, as is required for counsel seeking to withdraw on appeal of the denial of a PCRA petition. Appellant has not responded to the petition to withdraw. Court-appointed counsel who seek to withdraw from representing an appellant on appeal of a denial of a PCRA petition on the basis that the appeal lacks merit must review the case zealously. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007).

Turner/Finley counsel must then submit a "no-merit" letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel's diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the "no-merit" letter/brief; (2) a copy of counsel's petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

Id. (citations omitted). Counsel has substantially complied with the dictates of Turner/Finley.

When this Court receives a Turner/Finley brief we conduct an independent review of the record in light of the PCRA petition and the issues set forth within it, as well as of the contents of the petition of counsel to withdraw. See id. We will grant the petition to withdraw if we agree with counsel that the petition is meritless. See id.

This Court's 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. Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011) (citations and quotation marks omitted). However, "if a PCRA [p]etition is untimely, a trial court has no jurisdiction to entertain the petition." Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000) (citations omitted).

Here, Appellant filed his first PCRA petition on November 19, 2012. The PCRA provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final . . . ." 42 Pa.C.S.A. § 9545(b)(1). Appellant's judgment of sentence became final on April 8, 2010, thirty days after the judgment of sentence was entered on March 9, 2010, and the time for filing a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had one year, until April 8, 2011, to file a timely PCRA petition. Because Appellant did not file his current petition until November 2012, over one year later, the petition is facially untimely. Thus, he must plead and prove that he falls under one of the exceptions at Section 9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b).

Section 9545 provides that the court can still consider an untimely petition where the petitioner successfully proves that:

(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.

Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any of the above exceptions must file the petition "within [sixty] days of the date the claim could have been presented." Id. at § 9545(b)(2). The Pennsylvania Supreme Court has repeatedly stated that it is an appellant's burden to plead and prove that one of the above-enumerated exceptions applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008). Here, Appellant claims that he falls under the governmental interference exception, that he received ineffective assistance of plea counsel, [6] and that he was actually innocent. (See Appellant's Brief, at 9-12; N.T. PCRA Hearing, 5/10/13, at 3-7).

Appellant claims that counsel's ineffective assistance constituted governmental interference. (See Appellant's Brief, at 12). To plead and prove the governmental interference exception codified at 42 Pa.C.S.A. § 9545(b)(1)(i), Appellant must show that "the failure to raise the claim previously was the result of interference by government officials." 42 Pa.C.S.A. § 9545(b)(1)(i) (emphasis added). However, the PCRA specifically excludes defense counsel from the definition of "government officials." See 42 Pa.C.S.A. § 9545(b)(4); see also Commonwealth v. Abu-Jamal, 833 A.2d 719, 733 (Pa. 2003), cert. denied, 541 U.S. 1048 (2004) (finding claim that prior counsel was ineffective did not satisfy governmental interference exception). Thus, this claim lacks merit.

Appellant also claims that he is actually innocent of one of the two DUI charges and that plea counsel was ineffective. (See Appellant's Brief, at 9-10; N.T. PCRA Hearing, 5/10/13, at 4). The Pennsylvania Supreme Court has held that equitable claims such as actual innocence or ineffective assistance of counsel do not afford relief from the PCRA's jurisdictional time-bar. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999); see also, Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa.Super. 2003), appeal denied, 839 A.2d 351 (Pa. 2003) ("attempts to utilize ineffective assistance of counsel claims as a means of escaping the jurisdictional time requirements for filing a PCRA petition have been regularly rejected by our courts.") (citations omitted). Thus, there is simply no legal support for Appellant's claims that he can evade the time limits of the PCRA by claiming that he is actually innocent of one of the four charges that he pleaded guilty to or that he received ineffective assistance of counsel.

For the reasons discussed above, we hold that Appellant's PCRA petition is untimely with none of the statutory exceptions to the time bar proven. Accordingly, we affirm the denial of his PCRA petition and grant counsel's request to withdraw.

Motion to withdraw as counsel granted. Order affirmed.

Judgment Entered.


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