Com. v. Ocasio, G. ( 2016 )

J-S46018-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GABRIEL G. OCASIO
Appellant No. 2419 EDA 2015
Appeal from the PCRA Order July 7, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0514001-2000
BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2016
Gabriel G. Ocasio appeals, pro se, from the order entered on July 7,
2015, in the Court of Common Pleas of Philadelphia County, denying him
relief, without a hearing, on his third petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Specifically, the
PCRA court determined this petition was untimely. Following a thorough
review of the submissions by the parties, relevant law, and the certified
record, we affirm on the sound analysis of the PCRA court and direct the
parties to attach a copy of the PCRA court opinion, filed 10/13/2015, in case
of further proceedings.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S46018-16
Initially, we note, “Our standard of review over the denial of a PCRA
petition is well-settled. In reviewing the denial of PCRA relief, we examine
whether the PCRA court's determination is supported by the record and free
of legal error.” Commonwealth v. Mitchell, ___ A.3d ___, 2016 WL
3909072 (Pa. 2016) (filed (7/19/2016) (citations and internal quotation
marks omitted).
The PCRA court opinion in this matter accurately recounts the factual
and procedural history of this matter. We briefly note that in 2005, Ocasio
was convicted by jury of one count of first-degree murder, three counts of
attempted murder, and a variety of related charges. Ocasio was sentenced
to a term of life imprisonment. After his direct appeal afforded him no
relief,1 Ocasio filed his first PCRA petition and was represented by James
Bruno, Esq. This also provided no relief to Ocasio.2 He filed a second PCRA
petition, pro se. This petition claimed Bruno was ineffective. The second
petition was dismissed as untimely. A panel of our Court affirmed that
decision.3 This petition, Ocasio’s third, again raises claims of Bruno’s
ineffective assistance. Here, Ocasio attempts to evade the timeliness
____________________________________________
1
Commonwealth v. Ocasio, 919 A.2d 974 (Pa. Super. 2007) (unpublished
memorandum).
2
No appeal was taken from the dismissal of this petition.
3
See Commonwealth v. Ocasio, 2014 WL 10979204 (3/6/2014)
(unpublished memorandum).
-2-
J-S46018-16
requirements that doomed his prior petition by claiming he only recently
discovered Bruno had been suspended from the practice of law due to
mental health issues. However, the PCRA court appropriately noted that
Ocasio fails to explain how this fact affects his case given that Bruno’s
suspension from the practice of law was made retroactive to February 26,
2013 while Bruno’s representation of Ocasio ended in 2009.4
Our review of the certified record discloses the PCRA court’s order is
based upon the facts of record and is free from error. Accordingly, Ocasio is
not entitled to relief.
Order affirmed. Parties are directed to attach a copy of the PCRA
court opinion, dated, October 13, 2015, in the event of further proceedings.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
____________________________________________
4
There is some indication that Attorney Bruno’s symptoms may have first
manifested in 2011. However, that is still well after his relationship with
Ocasio terminated.
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Circulated 08/08/2016 10:22 AM
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
v. CP-5l-CR-0514001-2000
GABRIEL OCASIO
pp# 900140
FILED
DOCKET NO.: 2419 EDA 2015 OCT 1¥1_ 2015
Criminal Appeal.s Unit
First Judicia\ Distnct of PA
OPINION
. •.... . . . ....
Appellant, Gabriel Ocasio, appeals the July 7, 2015, dismissal of his
petition for relief pursuant to the Post Conviction Relief Act, 42 Pa. C.S. §§
9541 - 9546 et seq. (PCRA). Following review, the Court determined that
appellant's petition was untimely and failed to properly invoke an exception to
the timeliness requirements. The procedural history is as follows.
On September 27, 2005, following a jury trial, appellant was found guilty
. of first degree murder, attempted murder (3 counts), carrying a firearm without
a license, possession of an instrument of crime and aggravated assault, and
sentenced to life imprisonment followed by 30-60 years incarceration for the
murder of Francisco Quintana, and the shooting of Brian Norat, Pomy Pomales
and Nicholas Rios.! Post sentence motions were denied without a hearing and,
1 18 Pa.C.S. § 2502; 18 Pa.C:S. § 2502, § 901; 18 Pa.C.S. § 6106; 18 Pa.C.S. § 907; 18 Pa.C.S.
§ 2702, respectively. In addition to his sentence of life imprisonment without the possibility of
parole for first degree murder, appellant received 10-20 years incarceration on each attempted
murder charge, to run consecutively to each other and the life sentence; 3 Y2- 7 years
incarceration for carrying a firearm without a license; 2 Y2-5 years incarceration for possessing
an instrument of crime; and 5-10 years incarceration for aggravated assault, to run concurrent
1
j
on January 30, 2007, the Superior Court affirmed the judgment of sentence.
Appellant's petition for allowance of appeal was denied by the Pennsylvania
Supreme court on July 10, 2007.
On October 12, 2007, appellant filed a timely pro se PCRA petition
claiming that he was entitled to relief because of the ineffective assistance of
trial and appeal counsel.? On February 27, 2009, following independent review
j of appellant's claims in both the pro se, and amended petitions, and the
I
J Commonwealth's motion to dismis~, the Court determined that appellant had
failed to state a claim which entitled him to relief and a notice pursuant to
Pa.R.Crim.P. 907, indicating that appellant's petition would be dismissed
without a hearing after twenty days, was filed and served on appellant.
On March 6, 2009, appellant filed a pro se response to the 907 notice,
claiming that PCRA counsel had not communicated with him and requesting t
I
II· that attorney Raymond Roberts be appointed as replacement PCRA counsel. In
i response to appellant's allegations, the Court held dismissal of appellant's
1-·. . .. .. ----.--···-·····---·-··---·--· --·-·-------------------------- -···-.:. . . .------·---~- .----.--·-··--·- . ----·----------··-··· . . ···- -··:··----- .... _,t. '
petition in abeyance and had PCRA counsel respond to appellant's allegations · · j
!
at the March 17, 2009 listing. Counsel represented to the Court that he had in
fact been in contact with appellant, but would meet with appellant again, and·
additional time was given for counsel to consult further with appellant and
i?
proceed accordingly. On June 18, 2009, PCRA counsel filed a supplemental •·
amended PCRA petition containing four additional claims. The Commonwealth
. '
i
to all other sentences. l
2 Specifically, appellant complained that "trial counsel failed to object to multiple errors," and
"direct appeal counsel failed to file a proper brief to the Superior Court."
2
filed its motion to dismiss on June 26, 2009. Thereafter, the Court reviewed all
of the submissions and the applicable law and determined that appellant was
not entitled to PCRA relief. On August 21, 2009, a907 notice was filed and
served on appellant. On September 10, 2009, the Court received appellant's
prose response to the 907 notice, styled as a "Motion to Vacate the Court's
Pa.R.Crim.P. 907 Intention to Dismiss Order and for the Appointment of New
PCRA Counsel," indicating only that appellant had forwarded his entire file to
PCRA counsel and it had not yet been returned, that counsel only picked up
appellant's file eight days prior to the issuance of the 907 notice, and again
requesting that a specific attorney be appointed to replace appointed PCRA
counsel. The Court reviewed appellant's response and determined that return
of his file and a request to appoint a specific attorney to his case were not
issues warranting PCRA relief, and appellant's PCRA petition was dismissed
without a hearing on September 11, 2009. No appeal was taken.
On March 12, 2012, appellant filed a second petition for post conviction
-• •:- --~- ---~--·--• -- ·------•··•••r••••••••••-··-···-~---·-•--·-----~·•-·
relief claiming that he was eligible for relief beca 'use of the i;~-f~ctiv~-assTs-tance .. - --- ... .... . - ....
of counsel, improper obstruction by government officials of his right to appeal
where a meritorious appealable issue existed, newly discovered exculpatory
evidence, and because of the imposition of a sentence greater than the lawful
maximum. After reviewing appellant's complaints, the record and the
controlling law, the Court determined that appellant's petition for relief was
untimely. A 907 notice so indicating was filed and served on appellant on
February 7, 2013. On March 7, 2013, the Court received appellant's response
3
to the 907 Notice, complaining that PCRA counsel had provided ineffective
il assistance and outlining thirty-two claims that he would have raised on PCRA.3
Review of the claims revealed that they were either addressed on direct appeal,
I vague and undeveloped or had been raised in the counseled amended and
l1
supplemental amended petitions. On March 22, 2013, appellant's
petition for post conviction relief was formally dismissed. The Superior Court
second
l
j
l affirmed the dismissal on March 6, 2014 and the Pennsylvania Supreme Court
l denied the petition for allowance of appeal on August 19, 2014.
Il On December 31, 2014, appellant filed this his third PCRA claiming that
a newspaper article dated November 26, 2014, indicating that his former PCRA
"
lI counsel had been suspended for two years retroactive ·to his temporary
!
! 'suspension in February 2013, due to mental health issues, amounted to after
discovered evidence sufficient to overcome the PCRA time bar. Appellant
subsequently forwarded a copy of a letter from the Office of Disciplinary
Counsel dated February 3, 2015, indicating that PCRA counsel by Order dated
. -··· -----·-·--- ------ ··- ... ·----··-·-··· --·- ······-- __ ....... ---------·-···-··-·------------·-·..
, . . .•. ·• .•. - -···
-- --N6vemoerl3~-2{H4, was su-i;pended from the practice of law in this
Commonwealth for a period of two years retroactive to February 26, 2013, to be
followed by a two year period of probation after reinstatement.4 After review of
appellant's claims and the record, the Court determined that appellant had not
met his burden to show that his petition met a timeliness exception since the
PCRA for which counsel had been appointed was completed September 11,
3 The docket does not indicate that appellant's response to the 907 Notice was filed.
4 See File Reference Cl-10-705
4
2009. In response to the Rule 907 notice, appellant again asserted the claims
in his petition and included that, "Before a psychologist identified the disorders
in a 2011 diagnosis, determining they caused [PCRA counsel] to forget to file
pleadings, petitions, and appeal notices, as well as provide clients with
updates."> The Court did not find that this language entitled appellant to relief
and appellant's PCRA petition was dismissed as untimely on July 7, 2015. This
appeal followed.
The standard of review of a PCRA court's grant or denial of relief is
limited to examining whether the trial court's determination is supported by
•
-the evidence· of record and ·""';h.ether it is fre~ of legal error. Commonwealth v.
Owens, 2000 PA Super 105, 750 A.2d .872 (Pa. Super. 2000). The petition must
be timely, as the PCRA's timeliness restrictions are jurisdictional in nature and
are to be strictly construed. Commonwealth v. Abu-Jamal, 596 Pa. 219, 941
A.2d 1263, 1267-68 (2008). A judgment becomes final at the conclusion of
\\ direct review, including discretionary review in the Supreme Court of the
- -·-·- -··· ·-~· .. ·· - -- ---- ····-·:···--:-··---- -·- .
.,. ; ..
!-·-· -· · ·----tJnitea-states-and""llie-S-upreme Court .. o'rP~~~~yl~ania, or at the expiration of
time for seeking the review. Commonwealth v. Smith, 2011 PA Super 260, 35
A.3d 766, 769 (Pa. Super. Ct. 2011) citing 42 Pa.C.S.A. § 9545(b)(3). However,
an otherwise untimely PCRA petition may be reviewed, when a petitioner
invokes and pleads one of the exceptions provided in section 9545(b)(l), which
provides in relevant part:
(b) Time for filing petition.-
5 This appears to be a quote, but appellant does not reference where the language is found.
5
(1) Any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes final,
unless the petition alleges and the petitioner 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
.G<:mstitution orlaws 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. '''
. i
..
(2) Any petition invoking an exception provided in paragraph (1) shall be '
filed within 60 days of the date the claim could have been presented .
. 42 Pa.C.S_.A. § 9545(b)(l) and (2). It isthe petitioner's burden to plead and
prove an exception to the PCRA-timeliness rule. Commonwealth v. Blackwell,
2007 PA Super 314, 936 A.2d 497, 500 (Pa. Super. Ct. 2007).
I Appellant asserts that after discovered evidence of PCRA counsel's
·-·"' ..
l·-- · · mental health-iss~~s which resulted in his suspensicn f;6~-·th~-~~-actic·~ ~r-i;; .
meet the timeliness requirement of the PCRA. The record shows that PCRA
counsel was appointed for appellant's first PCRA on April 8, 2008. On
November 7, 2008, counsel filed an amended petition complaining of
approximately ten instances where trial and appellate counsel allegedly
provided ineffective assistance. Thereafter the Court determined that
appellant's claims lacked merit and filed and served appellant with a Rule 907
notice. On March 6, 2009, appellant filed a pro se response to the 907 notice,
6
1
l
1
j claiming that PCRA counsel had not communicated with him and requesting
'l
l
j that new counsel be appointed to replace PCRA counsel. In response to
[
appellant's allegations, the Court held dismissal of appellant's petition in
abeyance and had PCRA counsel respond to appellant's allegations on the
record at the March 17, 2009 listing; Appellant agreed to remain with counsel
and, on June 18, 2009, after consulting with appellant; PCRA counsel filed a
supplemental amended PCRA petition containing four additional claims.
Following review of all submissions, a second Rule 907 notice was served on
appellant to which appellant responded with a request for appointment of
replacement counsel. Appellant's PCRA first timely petition was dismissed on
September 11, 2009, two years before counsel's alleged 2011 diagnosis of
mental health issues and four years before the retroactive date of counsel's
suspension. Therefore, appellant has failed to demonstrate that his petition
meets any of the timeliness exceptions. Accordingly, appellant's PCRA petition
is untimely.
For the foregoing reasons, appellant's petition for post conviction relief
was properly dismissed.
BY THE COURT:
~tu~-~
SHEILA WOODS-SKIPPER, J.
7