Com. v. Castellanos, E. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EVAN CASTELLANOS :
:
Appellant : No. 1580 EDA 2021
Appeal from the PCRA Order Entered July 14, 2021
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001114-2015
BEFORE: OLSON, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 22, 2022
Evan Castellanos (Appellant) appeals pro se from the order entered on
July 14, 2021, in the Northampton County Court of Common Pleas, denying
and dismissing his third petition for collateral relief filed under the Post
Conviction Relief Act (PCRA)1 without a hearing. Appellant seeks relief from
the judgment of sentence of 16 to 35 years’ incarceration, imposed on March
3, 2016, after he pled guilty to attempted homicide.2 On appeal, Appellant
complains that the PCRA court erred in denying his motion for nunc pro tunc
reinstatement of his PCRA petition filed on February 13, 2016. See Appellant’s
Brief at 3. After careful review, we affirm.
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S. §§ 901(a), 2501(a).
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Appellant’s conviction stems from a shooting that took place June 15,
2014, in which Appellant drove to the victim’s house, asked the victim, an
acquaintance, to come outside, and then subsequently shot him, causing
significant but non-fatal injuries. As a result of the incident, the
Commonwealth charged Appellant with attempted homicide, aggravated
assault, and two counts of conspiracy.
On January 22, 2016, following a lengthy and detailed colloquy,
Appellant entered a negotiated guilty plea to one count of criminal attempt to
commit homicide. In exchange for the plea, the Commonwealth withdrew the
remaining charges against him. The plea also included a sentencing
agreement of 16 to 35 years’ imprisonment. Appellant requested that
sentencing be delayed so that his family could attend the proceeding, which
the court granted.
However, on February 26, 2016, Appellant filed a pro se motion to
withdraw his guilty plea, asserting he was innocent. He also alleged he did
not understand and was unaware of the basic sentencing matrix. The trial
court denied Appellant’s motion at the time of sentencing, and then imposed
the negotiated term of 16 to 35 years’ imprisonment.
Appellant filed a direct appeal, in which he claimed the trial court erred
and abused its discretion in denying his presentence motion to withdraw his
guilty plea because he had asserted his innocence. A panel of this Court
affirmed the judgment of sentence, agreeing with the trial court that Appellant
failed to establish a “plausible basis for his claim of innocence,” and the
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Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal on August 2, 2017. See Commonwealth v. Castellanos, 1074 EDA
2016 (unpub. memo) (Pa. Super. March 30, 2017), appeal denied, 259 MAL
2017 (Pa. Aug. 2, 2017).
Appellant then filed a timely, pro se PCRA petition on February 13, 2018.
The PCRA court appointed counsel, who did not file an amended petition. The
court held an evidentiary hearing on May 7, 2018. Both Appellant and his plea
counsel testified. The sole issue addressed at the hearing was whether plea
counsel was ineffective for inducing Appellant to enter a guilty plea despite his
desire to proceed to trial and raise the defense of duress.
At the close of testimony, the PCRA court directed the parties to file
briefs in support of their respective positions. However, on May 14, 2018,
PCRA counsel filed a “no-merit” letter in lieu of a brief and motion to withdraw
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
June 1, 2018, the PCRA court denied Appellant’s petition, and permitted PCRA
counsel to withdraw. Appellant appealed, and a panel of this Court affirmed
the PCRA court’s decision on June 24, 2019. See Commonwealth v.
Castellanos, 1806 EDA 2018 (unpub. memo) (Pa. Super. June 24, 2019).
The panel concluded Appellant did not properly preserve his sole argument on
appeal, an ineffectiveness claim regarding sentencing ramifications, thus
denying him relief. Castellanos, 1806 EDA 2018 at 8. Moreover, it opined
that had Appellant properly preserved this claim, it was meritless. Id.-3-
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(concluding plea counsel was aware of the sentencing matrix and Appellant
experienced no prejudice).
On October 7, 2019, Appellant filed a pro se “Petition for Habeas Corpus
Relief Pursuant to Article I Section 14 of the Pennsylvania Constitution,”
arguing his sentence was illegal because attempted criminal homicide “does
not exist within the Pennsylvania [C]rimes [C]ode.” See PCRA Ct. Op.,
10/17/19, at 2. The PCRA court treated this filing as a second PCRA petition
and denied relief. See id. at 2-3. Appellant did not file an appeal.
Thereafter, on June 24, 2021, Appellant filed a pro se “Motion for Nunc
Pro Tunc Reinstatement of PCRA Petition Filed [February 13, 2018.]” The
PCRA court again treated this as a PCRA petition, Appellant’s third, and denied
relief stating it was “untimely[.]” Order, 7/14/21, at 2. Appellant filed this
appeal and complied with the PCRA court’s order to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises the following on appeal:
Whether the [PCRA] court abused its discretion in denying
Appellant[’]s Motion for Nunc Pro Tunc Reinstatement of PCRA
Petition filed February 13, 201[8], where the proceeding was
[uncounseled] and violated the representation requirement?
Appellant’s Brief at 3 (some capitalization omitted).
The standard by which we review PCRA petitions is well settled:
Our standard of review in a PCRA appeal requires us to
determine whether the PCRA court’s findings of fact are supported
by the record, and whether its conclusions of law are free from
legal error. The scope of our review is limited to the findings of
the PCRA court and the evidence of record, which we view in the
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light most favorable to the party who prevailed before that court.
[ ] The PCRA court’s factual findings and credibility
determinations, when supported by the record, are binding upon
this Court. However, we review the PCRA court’s legal conclusions
de novo.
Commonwealth v. Small, 238 A.3d 1267, 1280 (Pa. 2020) (citations
omitted).
In his sole issue on appeal, Appellant asserts the court abused its
discretion in dismissing his petition for habeas corpus relief because his
confinement is based on the denial of his right to a counseled PCRA
proceeding. See Appellant’s Brief at 7. He references his first PCRA petition,
filed in February 2018, wherein he was appointed counsel but counsel later
filed a motion to withdraw, which was granted. Appellant alleges “PCRA
counsel’s failure to amend his pro se petition [led] to the deprivation of the
right to have appointed counsel ‘advance his position in acceptable legal
terms.’” Id. (citation omitted). Moreover, he states:
It is clear that a claim that a PCRA proceeding, as here, was unfair
and [uncounseled], does not fit within the eligibility requirements
of the PCRA. Appellant is not raising an . . . ineffectiveness claim,
he is raising a claim that his PCRA proceeding was unfair, based
on the proceeding being [uncounseled].
Id. at 8. Appellant also contends that because he was a habeas claimant, he
“is not subject to any time bar, or preclusion by res judicata, prior litigation
or waiver.” Id. (citations omitted).3
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3 Appellant also renews his argument that plea counsel was ineffective
because counsel “should have been aware of the ramifications of the
sentencing guidelines [and] deadly weapon enhancement matrix, [because]
(Footnote Continued Next Page)
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We initially note that while “this Court is willing to construe liberally
materials filed by a pro se litigant, pro se status generally confers no special
benefit upon an appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-
52 (Pa. Super. 2003) (citation omitted). Furthermore, he is not entitled to
have this Court advocate on his behalf. Commonwealth v. Rivera, 685 A.2d
1011, 1013 (Pa. Super. 1996).
Additionally, to the extent Appellant implies that he is not subject to any
procedural restrictions because he is a habeas corpus claimant, we point out
that the document at issue is a motion seeking nunc pro tunc relief, specifically
requesting a reinstatement of his February 13, 2018, pro se PCRA petition.
Because his argument rests on the assertion that both plea counsel and first
PCRA counsel were ineffective, he is subject to the constraints and limitations
of the Act. See 42 Pa.C.S. § 9542 (The PCRA “shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose . . . including habeas corpus[.]”);
see Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa. 2016)
(“[C]laims that could be brought under the PCRA must be brought under that
Act. . . . A claim is cognizable under the PCRA if the . . . conviction resulted
from one of seven enumerated errors set forth in 42 Pa.C.S. § 9543(a)(2),
including ineffective assistance of counsel.”).
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had he known[,] he could have exploited it into a better bargaining position
with regard to the plea bargain eventually entered into between the
Commonwealth and Appellant.” Appellant’s Brief at 9.
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Next, because we conclude that the dictates of the PCRA apply, we must
determine whether we have jurisdiction to review the matter.
We are guided by the following:
“Crucial to the determination of any PCRA appeal is the
timeliness of the underlying petition.” The timeliness requirement
for PCRA petitions “is mandatory and jurisdictional in nature.”
* * *
A PCRA petition[,including a second or subsequent petition,]
is timely if it is “filed within one year of the date the 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 time for seeking the review.” 42 Pa.C.S.A.
§ 9545(b)(3).
Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en
banc) (some citations omitted). Generally, this Court is without jurisdiction
to review the merits of issues raised in an untimely PCRA petition. See
Commonwealth v. Sanchez, 204 A.3d 524, 526 (Pa. Super. 2019). We may
reach the merits of an untimely PCRA petition only if the petitioner pleads and
proves one of the three exceptions set forth at Section 9545(b)(1). See 42
Pa.C.S. § 9545(b)(1)(i)-(iii); Montgomery, 181 A.3d at 365-66.
In the instant case, this Court affirmed Appellant’s judgment of sentence
on March 30, 2017, and the Pennsylvania Supreme Court denied his petition
for allowance of appeal on August 2, 2017. Appellant then had 90 days – until
October 31, 2017 – to seek certiorari with the United States Supreme Court.
See S.Ct.R. 13(1). However, Appellant did not, and thus, his judgment of
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sentence became final on October 31st. Appellant then generally had one
year, or until October 31, 2018, to file a PCRA petition. See 42 Pa.C.S. §
9545(b)(1). Appellant filed the present PCRA petition on June 24, 2021,
approximately three years thereafter. Therefore, the petition is facially
untimely.
We next must determine whether Appellant properly invoked one of the
timeliness exceptions set forth in Section 9545(b)(1) below:
(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.
See 42 Pa.C.S. § 9545(b)(1). When invoking a timeliness exception, a
petitioner must raise the exception either within 60 days or one year of the
date the claim could have been raised. See 42 Pa.C.S. § 9545(b)(2).4
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4 Until 2018, Section 9545(b)(2) required a petitioner to invoke a timeliness
exception within 60 days. However, in 2018, the time period was extended
to one year. 42 Pa.C.S. § 9545(b)(2); Act of October 24, 2018, P.L. 894, No.
146, § 2. The Act amending Section 9545(b)(2) provides that the one-year
period applies only to timeliness exception claims arising on or after December
24, 2017. Act of October 24, 2018, P.L. 894, No. 146, § 3. To the extent
(Footnote Continued Next Page)
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In denying PCRA relief, the court found that “[Appellant’s] request that
he be allowed to re-litigate his first PCRA is an improper attempt to overcome
the one year time bar[.]” PCRA Ct. Op., 8/27/21, at 6. We agree. Within
both his petition and his brief, Appellant did not attempt to prove any
exception to the PCRA time bar. Instead, he stated the constraints of the
PCRA did not apply to the present petition. Without pleading and proving an
exception to the time bar, we are without jurisdiction to address Appellant’s
claim on its merits. See Montgomery, 181 A.3d at 365; See
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(where a PCRA petition is untimely and the petitioner has not pled and proven
an exception, “neither this Court nor the [PCRA] court has jurisdiction over
the petition.”) (citation omitted). As such, no relief is due.
Moreover, it merits mention that an appellant is entitled to counsel to
litigate his first PCRA petition, and that appointment shall continue through
any appeal from the disposition of the PCRA petition. See Pa.R.Crim.P.
904(C), (F)(2). Nevertheless, counsel is permitted to withdraw at any stage
of the collateral proceedings if they comply with Turner/Finley. See
Commonwealth v. Bishop, 645 A.2d 274, 275 (Pa. Super. 1994). In that
circumstance, a “petitioner then may proceed pro se, by privately retained
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Appellant claims that PCRA counsel was ineffective regarding his 2018 petition
– that claim arose after December 2017, and thus, the one-year period applies
to that claim only. However, with respect to his assertion that plea counsel
was ineffective as to his 2016 plea deal, the 60-day period, rather than the
one-year period, applies.
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counsel, or not at all.” Id.; see also Commonwealth v. Rykard, 55 A.3d
1177, 1183 (Pa. Super. 2012) (the appointment of new counsel was improper
where appointed PCRA counsel was permitted to withdraw by the court
pursuant to Turner/Finley). Accordingly, Appellant’s claim that he was
deprived of counsel as to his first PCRA proceeding is without merit.
Lastly as the PCRA court correctly points out, Appellant’s underlying
claim regarding plea counsel has been previously litigated, and therefore, he
is not entitled to relief. See 42 Pa.C.S. § 9543(a)(3) (“To be eligible for relief
under this subchapter, the petitioner must plead and prove . . . [t]hat the
allegation of error has not been previously litigated or waived.”). See also
PCRA Ct. Op., 8/27/21, at 6 (Appellant’s “new claims are actually a
regurgitation of his prior claims but styled as an Amended Petition; and as a
result, [Appellant] seeks to have his third PCRA [petition] considered timely
filed under a misplaced theory that he is entitled to the retroactive application
of his first Petition’s filing date.”); Castellanos, 1806 EDA 2018 at 8
(concluding Appellant did not properly preserve his ineffectiveness claim
regarding plea counsel and in any event, plea counsel was aware of the
sentencing matrix and Appellant experienced no prejudice, thus making his
claim meritless). For the reasons discussed above, we conclude the PCRA
court properly found Appellant’s petition was untimely filed and he was not
entitled to any relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2022
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