Com. v. Hernandez, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GUSTAVO D. VELEZ-HERNANDEZ :
:
Appellant : No. 1795 EDA 2022
Appeal from the PCRA Order Entered June 23, 2022
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002367-2019
BEFORE: MURRAY, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY KING, J.: FILED JUNE 20, 2023
Appellant, Gustavo D. Velez-Hernandez, appeals pro se from the order
entered in the Lehigh County Court of Common Pleas, which dismissed his
petition filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
December 6, 2019, Appellant entered a negotiated guilty plea to one count of
conspiracy to commit criminal homicide. That same day, the court sentenced
Appellant to 20 to 40 years of incarceration. Appellant did not file a post-
sentence motion or a direct appeal.
Appellant filed the instant PCRA petition on November 6, 2021. The
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* Retired Senior Judge assigned to the Superior Court.
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PCRA court appointed counsel, who filed a Turner/Finley1 “no-merit” letter
and motion to withdraw as counsel on February 7, 2022.
On May 4, 2022, the PCRA court issued an order granting counsel’s
motion to withdraw. On May 24, 2022, the court issued notice of its intent to
dismiss Appellant’s petition without a hearing per Pa.R.Crim.P. 907. Appellant
filed a response to the Rule 907 notice on June 23, 2022. That same day, the
PCRA court dismissed Appellant’s PCRA petition as untimely. Appellant filed a
timely notice of appeal on July 11, 2022. The PCRA court did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and Appellant filed none.
Appellant raises one issue on appeal:
I. Did the trial court err in not correcting sentence?
(Appellant’s Brief at 3).
As a prefatory matter, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008),
cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).
Pennsylvania law makes clear that no court has jurisdiction to hear an
untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003). The PCRA requires a petition, including a second or
subsequent petition, to be filed within one year of the date the underlying
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1See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence
is 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 review.” 42 Pa.C.S.A. §
9545(b)(3).
Generally, to obtain merits review of a PCRA petition filed more than
one year after the judgment of sentence became final, the petitioner must
allege and prove at least one of the three timeliness exceptions:
(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.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner must file his
petition within one year of the date the claim could have been presented. 42
Pa.C.S.A. § 9545(b)(2).
To meet the “newly discovered facts” timeliness exception set forth in
Section 9545(b)(1)(ii), a petitioner must demonstrate that “he did not know
the facts upon which he based his petition and could not have learned those
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facts earlier by the exercise of due diligence.” Commonwealth v. Brown,
111 A.3d 171, 176 (Pa.Super. 2015).
Instantly, the court sentenced Appellant on December 6, 2019.
Appellant did not file a direct appeal. Therefore, his judgment of sentence
became final thirty days later, on January 5, 2020, at which time Appellant’s
time for filing a direct appeal expired. See Pa.R.A.P. 903(a) (providing
appellant must file direct appeal within 30 days). Thus, Appellant had until
January 5, 2021, to file a timely PCRA petition. See 42 Pa.C.S.A. §
9545(b)(1).
Appellant filed the current PCRA petition on November 6, 2021, which is
patently untimely. See id. On appeal, Appellant contends that he is entitled
to relief because he believed he would receive a sentence of 8 to 16 years of
incarceration per the terms of his negotiated plea agreement, and that he did
not discover until October 26, 2021 that the sentence imposed was actually
20 to 40 years’ imprisonment.
Appellant, however, has failed to plead and prove any exception to the
PCRA timeliness requirements. To the extent Appellant’s argument can be
construed as an attempt to invoke the newly discovered facts exception to the
PCRA’s timeliness requirements, Appellant cannot demonstrate any new facts
that could not have been ascertained sooner through the exercise of due
diligence. Here, the record discloses that Appellant was present in the
courtroom with the benefit of a Spanish court interpreter when the court
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sentenced him on December 6, 2019 to 20 to 40 years of incarceration.
Although Appellant claimed in his PCRA petition that the interpreter told him
the sentence would be 8 to 16 years’ imprisonment, the PCRA court found this
assertion to be belied by the record. (See Rule 907 Notice, 5/24/22, at 2
n.1). Our review of the record confirms the court’s findings. During the plea
hearing, Appellant agreed, through the translator, that he understood that his
guilty plea anticipated a sentence of 20 to 40 years’ imprisonment, and that
he understood when the trial court ultimately sentenced him in accordance
with the plea agreement to 20 to 40 years’ imprisonment. (See N.T. Hearing,
12/6/19, at 3, 16-17, 34).
Moreover, Appellant has not shown that he could not have discovered
the length of his sentence sooner with the exercise of due diligence. As the
PCRA court noted, all Appellant had to do was request his sentencing sheet
from prison officials, and he would have been notified of the length of his
sentence. Appellant made such a request in October 2021 prior to filing the
instant PCRA petition and was made aware of his sentence within a couple of
days. There is nothing to suggest that he could not have done so earlier,
thereby enabling him to file a timely PCRA petition. See Brown, supra.
Therefore, Appellant has failed to satisfy the newly discovered facts exception
and his PCRA petition remains time-barred. Accordingly, we affirm the PCRA
court’s order dismissing Appellant’s petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2023
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