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Commonwealth v. Echavarria

SUPERIOR COURT OF PENNSYLVANIA
Aug 27, 2018
No. J-S40024-18 (Pa. Super. Ct. Aug. 27, 2018)

Opinion

J-S40024-18 No. 2372 EDA 2017

08-27-2018

COMMONWEALTH OF PENNSYLVANIA Appellee v. LEANDROS ECHAVARRIA Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order July 10, 2017 in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007224-2011 BEFORE: LAZARUS, J., DUBOW, J., and PLATT, J. MEMORANDUM BY PLATT, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant, Leandros Echavarria, appeals, pro se, from the order dismissing the petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On November 14, 2011, after a non-jury trial, Appellant was convicted of robbery, conspiracy, and possessing an instrument of crime. The trial court sentenced him to a mandatory aggregate term of imprisonment of not less than ten nor more than twenty years because his robbery conviction constituted a second strike. This Court affirmed his judgment of sentence on May 6, 2013. ( See Commonwealth v. Echavarria , 81 A.3d 989 (Pa. Super. 2013) (unpublished memorandum)).

On September 28, 2015, Appellant filed the instant first PCRA petition. Appointed counsel filed an amended petition on November 28, 2016. On July 10, 2017, the PCRA court denied Appellant's claim, concluding that Appellant filed the petition after the one-year deadline without any applicable exceptions. This timely appeal followed.

Pursuant to the PCRA court's order, Appellant filed his statement of errors complained of on appeal on August 22, 2017. The PCRA court entered its opinion on September 25, 2017. See Pa.R.A.P. 1925.

Appellant, pro se, raises two questions on appeal.

On September 1, 2017, Appellant submitted to this Court an application for remand to allow him to represent himself. This Court issued an order directing the PCRA court to conduct a hearing pursuant to Commonwealth v. Grazier , 713 A.2d 81 (Pa. 1998). The PCRA court conducted a Grazier hearing on November 8, 2017, after which it granted Appellant's request to proceed pro se.

I. [Whether] the [PCRA] court below err[ed] in failing to find that trial counsel was ineffective when counsel failed to notify [Appellant] he was facing a mandatory sentence of 10 to 20 years in prison if he did not take the Commonwealth['s] offer of 6 to 20 years in prison, where as a result of that failure [Appellant] did receive the harsher sentence, and where appellate counsel was ineffective for failing to file a PCRA petition addressing failure, where appellate counsel abandoned [Appellant], did not file a PCRA [petition], and where [Appellant] reasonably believed that appellate counsel was pursuing the same?

II. [Whether] the [PCRA] court err[ed] in denying [Appellant] a hearing on his PCRA, where the court below found the claim to be time barred, rather than reaching the question of the ineffectiveness of the various counsel?
(Appellant's Brief, at 4) (most capitalization omitted).

In his first issue, Appellant presents a layered claim of ineffectiveness of counsel. Ultimately, he claims that he is entitled to relief because of the ineffectiveness of plea counsel. Specifically, he asserts that plea counsel failed to tell him that he faced a mandatory ten to twenty years of incarceration, thus he did not accept the Commonwealth's plea agreement offering not less than six nor more than twenty years of incarceration. ( See id. at 8-9). Appellant further contends that he is entitled to the newly-discovered fact exception to the PCRA time bar because he was abandoned by appellate counsel. Appellant's claim does not merit relief.

"Our standard of review of the denial of a PCRA petition is limited to examining whether the record evidence supports the court's determination and whether the court's decision is free of legal error." Commonwealth v. Shiloh , 170 A.3d 553, 556 (Pa. Super. 2017) (citation omitted).

The timeliness of a PCRA petition is a jurisdictional requisite. A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment becomes final. [ See ] 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).
Id. at 557 (case citation omitted).

In the instant case, Appellant's judgment of sentence became final on June 5, 2013, when the time for filing a petition for allowance of appeal to the Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113(a). Thus, he had until June 5, 2014, to file a timely PCRA petition. Therefore, the instant petition filed on September 28, 2015, is patently untimely, and Appellant must prove that he is entitled to one of the three exceptions to the PCRA time-bar.

Our Supreme Court denied Appellant's petition for leave to file a petition for allowance of appeal nunc pro tunc, on January 24, 2017.

The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. [ See ] 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and the petitioner must prove:

(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)(i)-(iii). . . .
Shiloh , supra at 557.

Instantly, Appellant claims that he is entitled to the newly discovered fact exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii), because counsel abandoned him by failing to file a PCRA petition after denial of his direct appeal. ( See Appellant's Brief, at 10). Appellant argues that he received a letter from his counsel dated July 18, 2013, advising him of the outcome of his direct appeal, and posing several questions to Appellant so that he could offer recommendations concerning post-conviction relief. ( See Pro Se PCRA Petition, 9/28/15, at 2, Exhibit A). Appellant responded to counsel's letter, answering the questions, and did not receive any response. ( See id. at Exhibit B). Two years later, on July 21, 2015, Appellant sent a letter to counsel concerning whether counsel filed a PCRA petition on his behalf. Upon receiving a response confirming that no petition was filed, Appellant filed his first pro se, PCRA petition. In that petition he claims that: "[h]ad attorney Farrell specif[ied] that he was [only] retained to handle [Appellant's] direct appeal in the first letter dated July 18, 2013," or "[h]ad attorney Farrell responded to [Appellant's] letter dated July 2013, specifically indicating clearly that Farrell would no longer represent [Appellant] in his PCRA [p]etition, then [Appellant] would . . . have attempted to file a pro se PCRA [petition] with assistance of a [j]ailhouse [l]awyer." ( Id. at 8). Appellant thus argues that he exercised due diligence, and filed his petition within sixty days of his learning of counsel's abandonment. ( See id .).

In Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264 (2007), our Supreme Court addressed the application of the timeliness exception under section 9545(b)(1)(ii) to a claim of abandonment by counsel. In that case, after the deadline for filing a timely PCRA petition had expired, the defendant discovered that his PCRA counsel had failed to file a brief, resulting in the dismissal of his appeal. Id. at 1266-67, 1272. The defendant filed an untimely PCRA petition, and invoked the newly-discovered fact exception, arguing that the discovery of counsel's abandonment
constituted a new fact that could not have been ascertained earlier with due diligence. Id. at 1267, 1272.

The Supreme Court stated that in order to invoke this exception, a petitioner is required to allege and prove that 1) there were facts that were unknown to him; and 2) that he exercised due diligence. Id. at 1272; see also id. at 1271 (noting that the exception at section 9545(b)(1)(ii) did not require a petitioner to prove that these new facts constituted exculpatory evidence that would have changed the outcome of the proceedings). The Supreme Court held that while claims of ineffective assistance of counsel do not invoke the exception under section 9545(b)(1)(ii), an allegation of abandonment by counsel falls within the ambit of that exception. Id. at 1274.
Commonwealth v. Chester , 163 A.3d 470, 473 (Pa. Super. 2017).

In the instant case, after this Court affirmed Appellant's judgment of sentence on direct appeal, counsel for Appellant drafted a letter to Appellant posing specific questions about whether or not Appellant received a pretrial offer, so that counsel could "continue to advise you and your family as to my recommendations for post-conviction relief." (Pro Se PCRA Petition, at Exhibit A). Appellant responded to counsel's letter, answering the questions presented, in July 2013. Counsel did not file a timely collateral appeal, and did not withdraw his representation.

On July 21, 2015, Appellant wrote a letter to counsel to find out if counsel had filed a PCRA petition in his case. On August 3, 2015, counsel sent Appellant a letter stating that he "was only retained to handle your direct appeal, and no member of your family contacted me . . . to discuss with me bringing a PCRA [p]etition." ( Id. at Exhibit D). On September 28, 2015, Appellant filed his pro se PCRA petition, which was within sixty days of the letter.

Thus, it appears that Appellant has properly invoked the timeliness exception at section 9545(b)(1)(ii), by demonstrating that counsel abandoned him. See Bennett , supra at 1274; Chester , supra at 474. Having sufficiently invoked the timeliness exception, Appellant "must still prove that the facts were unknown to him and that he could not uncover the facts earlier with due diligence." Chester , supra at 474 (citation omitted). "Such questions require further fact-finding and the PCRA court, acting as fact finder, should determine whether [Appellant] met the 'proof' requirement under [section] 9545(b)(1)(ii)." Id. (citations omitted). Due diligence requires more than passively waiting for a response from counsel, but rather "demands the petitioner to take reasonable steps to protect [his] own interests." Shiloh , supra at 558 (citation omitted).

Here, Appellant waited two years after sending a letter to counsel before he inquired as to whether counsel had filed a PCRA petition. The PCRA court considered whether Appellant exercised due diligence, and concluded that Appellant "does not explain why it took him over two years to learn that his appellate counsel did not file any PCRA petition, nor does he present any facts to show that he was duly diligent in remedying this error." (PCRA Court Opinion, 9/25/17, at unnumbered page 6). Thus, the PCRA court found that Appellant did not exercise due diligence in uncovering that appellate counsel had failed to file a collateral appeal on his behalf. Upon review, we conclude that the PCRA court's decision that the newly discovered fact exception did not apply, and Appellant's petition was time barred, is supported by evidence of record. See Shiloh , supra at 556. Accordingly, Appellant's first issue does not merit relief.

Notably, Appellant never asked counsel to file a petition on his behalf, nor did counsel ever explicitly state that he was going to do so.

In his second issue, Appellant claims that the PCRA court erred when it failed to conduct an evidentiary hearing concerning his petition. ( See Appellant's Brief, at 10-12). Specifically, he argues that he is entitled to the newly discovered fact exception, thus the time bar did not divest the PCRA court of jurisdiction, and the court should have held an evidentiary hearing. Appellant's claim does not merit relief.

Pennsylvania law is clear that "[i]f the petition is untimely and the petitioner has not pled and proven an exception, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition." Commonwealth v. Hudson , 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation omitted).

Here, as discussed, Appellant has not established the applicability of any of the three exceptions to the PCRA's time-bar. Therefore, his petition must be dismissed without a hearing. See id. Accordingly, we conclude the PCRA court did not err when it denied Appellant's petition without a hearing. Appellant's second issue fails to establish an exception to the statutory time bar.

Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18


Summaries of

Commonwealth v. Echavarria

SUPERIOR COURT OF PENNSYLVANIA
Aug 27, 2018
No. J-S40024-18 (Pa. Super. Ct. Aug. 27, 2018)
Case details for

Commonwealth v. Echavarria

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. LEANDROS ECHAVARRIA Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 27, 2018

Citations

No. J-S40024-18 (Pa. Super. Ct. Aug. 27, 2018)