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[U] Commonwealth v. Fontanez

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JEREMY FONTANEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order Entered January 14, 2013, In the Court of Common Pleas of Lehigh County, Criminal Division, at No. CP-39-CR-0002510-2003.

BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Jeremy Fontanez, appeals from the order entered January 14, 2013, dismissing his petition filed pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On July 1, 2004, Appellant entered negotiated guilty pleas to first-degree murder, robbery, attempted criminal homicide, aggravated assault, recklessly endangering another person, and conspiracy to commit robbery, resulting in a sentence of life imprisonment and an aggregate consecutive sentence of twenty-four to forty-eight years of incarceration. Appellant did not file an appeal.

More than two and one-half years later, Appellant filed a pro se notice of appeal in the Commonwealth Court, which transferred the appeal to this Court on July 2, 2008. The appeal was docketed at 2411 EDA 2008. In the meantime, Appellant filed a second pro se notice of appeal docketed at 979 EDA 2007, which we quashed on January 24, 2008. Pursuant to the Commonwealth's motion to quash the first appeal, this Court quashed the first appeal at 2411 EDA 2008 as untimely. Appellant filed a petition for allowance of appeal on January 7, 2009, which was denied on May 27, 2009. Commonwealth v. Fontanez, 972 A.2d 520 (Pa. 2009).

On May 4, 2010, Appellant filed a writ of habeas corpus, which was denied on November 24, 2010. Fontanez v. Holt, F.Supp., 2010 WL 4814694, (E.D. Pa. 2010). Appellant's appeal to the Court of Appeals for the Third Circuit was denied on November 28, 2011, his petition for reargument en banc was denied on January 4, 2012, and a petition for writ of certiorari was denied on October 1, 2012. Fontanez v. Holt, U.S., 133 S.Ct. 324 (2012).

Appellant filed a pro se petition for PCRA relief on October 23, 2012, and newly appointed counsel filed an amended petition on December 4, 2012. The PCRA court determined that the petition was untimely and that Appellant failed to prove any exception to the time bar of the statute; thus, it denied the petition.

Appellant raises the following issue for our review:
Whether the lower court acted properly in denying [Appellant's] petition for post conviction collateral relief, without hearing or testimony, when [Appellant] alleges an arguable claim for ineffective assistance of counsel based upon recent holdings of United States Supreme Court?

Appellant's Brief at 7.

Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.Super. 2013) (citations omitted).

To be timely, a PCRA petition "shall be filed within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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).

In the case before us, because Appellant did not file a direct appeal, the judgment of sentence became final on August 2, 2004, [1] upon expiration of the time to file an appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3). Thus, any PCRA petition must have been filed by August 2, 2005, to be considered timely. As Appellant did not file his PCRA petition until October 23, 2012, it is untimely on its face.[2]

There are three statutory exceptions to the timeliness provision that provide limited circumstances excusing the late filing of a PCRA petition:

(i) the failure to raise a 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). Any petition invoking an exception "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2).

Appellant attempted to circumvent the time-bar by asserting the third exception to the PCRA timeliness requirements. 42 Pa.C.S.A. § 9544(b)(1)(iii). Appellant averred that the decisions in Lafler v. Cooper, U.S.__, __132 S.Ct. 1376 (2012), and Missouri v. Frye, __U.S. __, 132 S.Ct. 1399 (2012), created "a new constitutional right or a new rule of law" as contemplated by section 9545(b)(1)(iii) of the PCRA, allowing him to seek PCRA relief despite his untimely filing. Appellant's Brief at 14. The PCRA court determined that the above-cited cases "did not, in fact, create a new rule of law that should apply retroactively, " without citing support. PCRA Court Order, 1/15/13, at 2.

This Court recently held, "It is apparent that neither Frye nor Lafler created a new constitutional right. Instead, these decisions simply applied the Sixth Amendment right to counsel, and the Strickland test for demonstrating counsel's ineffectiveness, to the particular circumstances at hand . . . ." Commonwealth v. Feliciano, 69 A.3d 1270, 1277 (Pa.Super. 2013). See also Hernandez, 79 A.3d at 654 ("Lafler and Frye . . . do not recognize a new constitutional right, [and] Appellant's attempt to satisfy the PCRA's 'newly recognized constitutional right' exception fails."). Therefore, we agree with the PCRA court that Appellant has failed to plead or prove a statutory exception to the PCRA time bar.

The PCRA court also held that Appellant failed to comply with 42 Pa.C.S.A. § 9545(b)(2) because he did not present his claim within sixty days of the date the claim could have been presented. The PCRA court is correct. Both Lafler and Frye were decided on March 21, 2012; Appellant filed his PCRA petition on October 23, 2012, more than seven months after the decisions were filed. Appellant attempts to excuse this non-compliance by asserting that his imprisonment precluded access to pertinent statutory and case law materials. Appellant's Brief at 15. We previously stated that "the sixty-day period begins to run upon the date of the underlying judicial decision." Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.Super. 2007). In rejecting an appellant's claim that he satisfied the sixty-day requirement of section 9545(b)(2) because he filed his PCRA petition within sixty days of the date the decision became available to his prison's law library, this Court stated, "Ignorance of the law does not excuse [the appellant's] failure to file his petition within the 60 days following the . . . decision . . . . Neither the court system nor the correctional system is obliged to educate or update prisoners concerning changes in case law." Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012).

We conclude that Appellant has not established the applicability of any of the exceptions to the PCRA timeliness requirements, and thus, the PCRA court properly dismissed Appellant's petition as untimely. Therefore, we lack jurisdiction to reach the merits of the appeal. See Commonwealth v. Taylor, 67 A.3d 1245, 1249 (Pa. 2013) ("PCRA time requirement mandatory and jurisdictional in nature; court cannot ignore it and reach merits of petition."); Hernandez, 79 A.3d at 655 (holding that Superior Court lacks jurisdiction to reach merits of appeal from untimely PCRA petition).

Order affirmed.


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