Com. v. Gonzalez, A. (memorandum)

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J-S22016-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ANDREW GONZALEZ Appellant No. 28 MDA 2017 Appeal from the PCRA Order December 14, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0005540-2005 BEFORE: SHOGAN, J., MOULTON, J., and PLATT, J.* MEMORANDUM BY MOULTON, J.: FILED AUGUST 16, 2017 Andrew Gonzalez appeals, pro se, from the December 14, 2016 order entered in the Berks County Court of Common Pleas dismissing as untimely his fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm. The PCRA court thoroughly summarized the factual and procedural history of this matter in its November 16, 2016 order and notice of intent to dismiss Gonzalez’s petition, which we adopt and incorporate herein. Order and Notice of Intent to Dismiss, 11/16/16, at 1-4 (“PCRA Ct. Order”). On August 16, 2016, Gonzalez filed his fourth PCRA petition, pro se. On November 16, 2016, the PCRA court issued a notice of intent to dismiss ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S22016-17 Gonzalez’s petition under Pennsylvania Rule of Criminal Procedure 907. On December 2 and 5, 2016, Gonzalez filed two identical responses to the PCRA court’s notice. On December 14, 2016, the PCRA court dismissed Gonzalez’s petition. Gonzalez timely filed a notice of appeal. Gonzalez raises the following issues on appeal: 1. Did the trial court err when it unreasonably applied the correct legal rule to the particular facts in determining the timeliness of the PCRA petition[?] 2. Did the act of silence on the part of the trial court judge and/or prosecutor create a false impression that it was permissible to select and impanel two jurors with preconceived opinions to decide the evidence at [Gonzalez]’s trial in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States[?] 3. Did the act of silence on the part of the trial court judge and/or prosecutor create a false impression of a material fact, that [Gonzalez] was tried and convicted before a fair and impartial jury, known to them not to be true, result in [Gonzalez]’s failure to raise previously the juror bias claim at trial, direct appeal, and in his first PCRA petition where he was without the benefit of the trial court record[?] 4. Did the Sixth and Fourteenth Amendments to the Constitution of the United States mandate the trial court judge and/or prosecutor to reveal two of the jurors selected and impaneled on the jury at [Gonzalez]’s trial [were] in fact bias [sic][?] 5. Whether [Gonzalez] was deprived of a fair and impartial jury when the trial court, prosecutor and defense counsel allowed two jurors that were incapable or unwilling to decide his case solely on the evidence at trial denied [him of] his Sixth and Fourteenth Amendment rights to the Constitution of the United States. Gonzalez’s Br. at 4 (some alterations in original). -2- J-S22016-17 Our standard of review from the denial of PCRA relief “is limited to examining whether the PCRA court’s determination is supported by the evidence of record and whether it is free of legal error.” Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011). Before we reach the merits of Gonzalez’s appeal, we must determine whether his PCRA petition was timely filed. It is well settled that “the timeliness of a PCRA petition is a jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment 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 the review.” 42 Pa.C.S. § 9545(b)(3). Gonzalez’s judgment of sentence became final on March 29, 2010,1 when the time to seek review in the Supreme Court of the United States ____________________________________________ 1 We note that the trial court erroneously calculated the date that Gonzalez’s judgment of sentence became final as March 28, 2010. See PCRA Ct. Op. at 5. -3- J-S22016-17 expired.2 He had one year from that date, that is, until March 29, 2011, to file a timely PCRA petition. Therefore, his current petition, filed on August 16, 2016 is facially untimely. Gonzalez’s petition remains untimely unless it alleges and proves a PCRA time-bar exception. Courts may consider a PCRA petition filed more than one year after a judgment of sentence became final only if the petitioner alleges and proves one of the following three statutory 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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76. In addition, when invoking an exception to the PCRA time bar, the petition ____________________________________________ 2 Gonzalez had 90 days from the date the Supreme Court of Pennsylvania denied his petition for allowance of appeal to file a petition for a writ of certiorari with the Supreme Court of the United States. See U.S. S. Ct. R. 13. -4- J-S22016-17 must “be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Based on our review of the certified record, the parties’ briefs, and the relevant law, we conclude that the trial court appropriately dismissed Gonzalez’s PCRA petition as untimely, because he failed to establish any of the PCRA time-bar exceptions. We reach these conclusions for the reasons stated in the Honorable Mary Ann Ullman’s well-reasoned opinion, which we adopt and incorporate herein. See PCRA Ct. Op. at 4-7. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/16/2017 -5- Circulated 07/28/2017 10:23 AM

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