Commonwealth v. Feliciano

• Decision Date: 01 July 2013
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jose Miguel FELICIANO, Appellant.
• Court: Pennsylvania Superior Court

69 A.3d 1270

2013 PA Super 163

COMMONWEALTH of Pennsylvania, Appellee

v.Jose Miguel FELICIANO, Appellant.

Superior Court of Pennsylvania.

Submitted April 15, 2013.

Filed July 1, 2013.

Jose M. Feliciano, appellant, pro se.

James B. Martin, District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J.E., BENDER, J., and WECHT, J.

OPINION BY BENDER, J.:

Appellant, Jose Miguel Feliciano, appeals pro se from the court's June 28, 2012 order dismissing his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546. Appellant argues, inter alia, that the PCRA court improperly considered his petition as untimely where he presents claims that satisfy two exceptions to the PCRA time-bar, those contained in sections 9545(b)(1)(ii) and (iii). After careful review, we disagree that Appellant's assertions meet either of these exceptions. Accordingly, we affirm the denial of his untimely petition.

The factual and procedural history of this case can be summarized as follows. On February 4, 1993, Appellant was convicted by a jury of first-degree murder, aggravated assault, recklessly endangering another person (REAP), and carrying a firearm without a license. His convictions stemmed from the May 15, 1992 shooting death of Anthony Breeland. At Appellant's trial, several witnesses testified that Appellant and Breeland had an altercation, during which Breeland, who had been drinking, pushed Appellant and began yelling at him. In response, Appellant pulled out a loaded gun and fired five shots at Breeland, three of which were at point-blank range. Breeland sustained gunshot wounds to his back, stomach, and thigh, and ultimately died from the blood loss caused by those injuries.

Following a death penalty hearing, the jury determined that Appellant's punishmentshould be life imprisonment, and the court imposed that sentence on February 5, 1993. Appellant timely appealed and, after this Court affirmed his judgment of sentence, our Supreme Court denied his petition for permission to appeal on August 18, 1998. Commonwealth v. Feliciano, 715 A.2d 501 (Pa.Super.1998) (unpublished memorandum), appeal denied,556 Pa. 671, 727 A.2d 127 (1998).

On April 13, 1999, Appellant filed his first pro se PCRA petition and counsel was appointed. After conducting an evidentiary hearing, the PCRA court denied Appellant's petition. This Court affirmed on appeal, and our Supreme Court denied Appellant's petition for permission to appeal. Commonwealth v. Feliciano, 839 A.2d 1152 (Pa.Super.2003), appeal denied,579 Pa. 689, 856 A.2d 832 (2004). Appellant then filed a second pro se PCRA petition in January of 2001, which the court denied as untimely. This Court affirmed that denial on November 6, 2008. Commonwealth v. Feliciano, 964 A.2d 940 (Pa.Super.2008).

Appellant filed the instant pro se PCRA petition, his third, on April 26, 2012. Appellant claimed that his trial counsel, Charles Sieger, Esquire, rendered ineffective representation by not promptly conveying to Appellant a plea offer from the Commonwealth. Specifically, Appellant alleged that Attorney Sieger received a letter from the Commonwealth on or about January 13, 1993, offering Appellant a sentence of 10 to 20 years' incarceration if he pled guilty to third-degree murder. Appellant claimed that Attorney Sieger never showed him that letter. Instead, Attorney Sieger waited until February 2, 1993, during the trial, to orally inform Appellant of the plea offer. When Appellant then attempted to accept the plea deal, the Commonwealth stated that the offer of 10 to 20 years' imprisonment had been rescinded and replaced with a sentence of 30 to 60 years. Appellant rejected that offer, continued with the trial, and was convicted, ultimately receiving a sentence of life imprisonment. Appellant claimed that he discovered the Commonwealth's letter shortly after he filed his first petition for post conviction relief in April of 1999, when Attorney Sieger sent him his case file. Appellant averred that Attorney Sieger's failure to disclose the letter and/or promptly inform him of the Commonwealth's plea offer “fell directly within the [s]tandard of [IAC] as provided by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as well as stands upon [United States] Supreme Court decisional law in Missouri v. Frye, [––– U.S. ––––, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ], Lafler v. Cooper, [––– U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012),] and Martinez v. Ryan, [––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) ].” Appellant's Pro Se PCRA Petition, 4/26/12, at Supplemental Page 3.

On June 5, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition, reasoning that it was patently untimely pursuant to 42 Pa.C.S. § 9545(b)(1) (any petition must be filed within one year of the date the judgment of sentence becomes final). The court also emphasized that Appellant admitted in his petition that he discovered the Commonwealth's letter offering the 10 to 20 year plea deal in 1999, concluding that Appellant could have raised his ineffectiveness claim at that time.

The court did not receive a response from Appellant to the Rule 907 notice. Accordingly, on June 28, 2012, it dismissed his petition without a hearing. However, on July 3, 2012, Appellant filed a pro se document entitled, “Motion In Objection to the Court's June 5th, 2012 Order, With Notice Pursuant to Pa.R.Crim.P. 907(1).” In that motion, Appellant contended that the United States Supreme Court's decision in Martinez recognized a new constitutional right that permitted him to assert his claim of Attorney Sieger's ineffectiveness under the timeliness exception of section 9545(b)(1)(iii). Appellant also argued that the attorneys assigned to represent him in his first two PCRA proceedings were ineffective for failing to assert Attorney Sieger's ineffectiveness and, as such, Appellant should be permitted to raise this issue despite its untimeliness.

On July 6, 2012, Appellant filed another pro se response to the court's Rule 907 notice. In that document, Appellant raised novel issues regarding his mental competency. He also asserted that he discovered “new evidence” in the form of an affidavit drafted by his “jail-house assistant,” William Wallace, Jr., informing Appellant that after Attorney Sieger's representation of Appellant concluded, Attorney Sieger's license to practice law had been suspended due to his ineffective representation of other clients.

Then, on July 19, 2012, Appellant filed a third pro se document, this time a motion for reconsideration of the court's June 28, 2012 order denying his PCRA petition. Appellant averred that the court had improperly denied his petition without considering Appellant's responses to the court's Rule 907 notice. Appellant alleged that pursuant to the “Prisoner Mailbox Rule,” those filings should have been deemed as timely and the court should have evaluated them prior to deciding to dismiss Appellant's petition. See Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423, 426 (1997) (holding that pursuant to the “prisoner mailbox rule,” direct appeals filed by pro se appellants are deemed filed on the date that the prisoner deposits the appeal with prison authorities or places it in a prison mailbox).

Before the PCRA court could rule on Appellant's motion for reconsideration, ¹ he filed a timely pro se notice of appeal with this Court.² Appellant was directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied. In his concise statement, Appellant presented the same three issues that he raises herein. Those claims are as follows:

A. [Did] [t]he PCRA court err[ ] by failing to conduct an evidentiary hearing on Appellant's claims and grant the requested relief[?]

B. [Did] [t]he PCRA court violate[ ] Appellant's due process and equal protection rights when the court failed to consider government interference that occurred in the filling of his timely objection to the court's [Rule] 907 notice[?]

C. Whether Appellant is entitled to a remand for an evidentiary hearing on his newly discovered evidence, based on the affidavit of William Wallace, Jr.[?]

Appellant's Brief at 4.

Before assessing Appellant's arguments, we note that:

Our standard of review of the denial of a PCRA petition is limited to examining whether the court's rulings are supported by the evidence of record and free of legal error. This Court treats the findings of the PCRA court with deference if the record supports those findings. It is an appellant's burden to persuade this Court that the PCRA court erred and that relief is due.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super.2012) (citations omitted).

In his first issue, Appellant contends that the PCRA court improperly deemed his petition untimely and denied it without a hearing. The PCRA time limitations, and exceptions thereto, are set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section states:

(b) Time for filing petition.—

(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 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.

To invoke...