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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VICTOR MALDONADO-RIVERA,
Appellant
No. 315 MDA 2014
Appeal from the Order Entered January 16, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0000088-2006
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.
FILED AUGUST 19, 2014
Victor Maldonado-Rivera appeals from an order dated January 16,
2014 dismissing his Post Conviction Relief Act (“PCRA”) petition as untimely.
We affirm.
Maldonado-Rivera was charged with three counts of involuntary
deviate sexual intercourse1, two counts of aggravated indecent assault2,
corruption of minors3, two counts of indecent assault4 and indecent
exposure5.
On May 25, 2006, he entered an open plea to two counts of
involuntary deviate sexual intercourse, one count of aggravated indecent
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2
Pa.
Pa.
Pa.
Pa.
Pa.
C.S.
C.S.
C.S.
C.S.
C.S.
§
§
§
§
§
3123.
3125.
6301.
3126.
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assault, and one count of indecent assault. On October 14, 2006, he was
sentenced to an aggregate term of 14½--34 years of incarceration.
On October 16, 2006, through new counsel, Maldonado-Rivera filed
timely post-sentence motions requesting a modification of sentence and
withdrawal of his guilty plea due to alleged ineffectiveness of prior counsel.
On December 11, 2006, he filed an amended post-sentence motion claiming
that prior counsel was ineffective for failing to have him evaluated for
competency.
On the same date, he filed a motion for a competency
evaluation. On January 16, 2008, following a hearing and briefing, the trial
court entered an order denying all motions. On March 11, 2009, this Court
affirmed the judgment of sentence, and on August 26, 2009, the Supreme
Court denied his petition for allowance of appeal.
On December 27, 2011, Maldonado-Rivera filed a petition for a “writ of
habeas corpus ad subjiciendum” pursuant to 42 Pa.C.S. §§ 6501-05 in which
he claimed that he was denied the right to counsel at his preliminary
arraignment.
On January 6, 2012, the trial court denied this motion, and
Maldonado-Rivera appealed to this Court. On June 12, 2012, we remanded
the case and directed that the trial court treat this motion as a first PCRA
petition instead of a habeas corpus motion, because the PCRA subsumed
Maldonado-Rivera’s claim of denial of counsel.
We also directed the trial
court to appoint counsel for Maldonado-Rivera, since this was his first
petition for PCRA relief.
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On remand, the trial court appointed counsel to represent MaldonadoRivera. On August 8, 2013, court-appointed counsel filed a "no-merit" letter
pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988),
and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). Counsel stated
that Maldonado-Rivera’s petition was untimely under the PCRA’s one-year
statute of limitations, and that it did not satisfy any of the three exceptions
to the statute of limitations within 42 Pa.C.S. § 9545(b)(1).
Counsel acknowledged in his Finley letter that Maldonado-Rivera
insists that his PCRA petition is timely under the “interference by
government officials” exception to the statute of limitations6. According to
Maldonado-Rivera, prison officials7 prevented him from filing a timely
petition by failing to provide him with Spanish speaking paralegals or
Spanish-English law books. In support of this argument, Maldonado-Rivera
cited the Third Circuit’s decision in Pabon v. S.C.I. Mahanoy, 654 F.3d 385
(3d Cir.2011).
Counsel’s Finley letter opined that Pabon was inapposite.
Pabon
held that the inability to read or understand English, combined with the
denial
of
access
to
translation
or
legal
assistance,
may
constitute
extraordinary circumstances that trigger equitable tolling of the one-year
limitation period for filing a federal habeas petition under the Antiterrorism
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42 Pa.C.S. § 9545(b)(1)(i).
Maldonado-Rivera is serving his sentence at SCI Fayette.
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and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254.
Unlike the AEDPA, counsel said, the PCRA does not permit equitable tolling;
thus, Pabon does not help Maldonado-Rivera.
On October 3, 2013, the trial court issued a notice of intent to dismiss
Maldonado-Rivera’s petition without a hearing and permitted MaldonadoRivera’s counsel to withdraw his appearance.
On January 16, 2014, the
court dismissed Maldonado-Rivera’s petition.
Maldonado-Rivera filed a timely appeal and timely statement of
matters complained of on appeal in which he raised one issue: “Did the
Department of Corrections cause [Maldonado-Rivera’s] one year time limit to
expire where its law library failed to possess Spanish-English books or
paralegals, thus constituting equitable tolling under federal habeas corpus
law of a meritorious claim of due process?”
In other words, Maldonado-
Rivera claims that he would have timely filed a petition objecting to the
absence of counsel from his preliminary arraignment had his prison provided
Spanish speaking paralegals and/or Spanish-English texts. The trial court
issued a Pa.R.A.P. 1925(a) opinion finding Maldonado-Rivera’s PCRA petition
untimely, citing with approval the reasoning in counsel’s Finley letter.
We agree with the trial court that Maldonado-Rivera’s PCRA petition is
untimely.
“The PCRA’s time restrictions are jurisdictional in nature. Thus,
[i]f a PCRA petition is untimely, neither this Court nor the trial court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
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legal authority to address the substantive claims.” Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa.2010) (quoting Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa.2006)).
The trial court and PCRA counsel correctly reasoned that the PCRA’s
time limits are not subject to equitable tolling. The PCRA’s time limitations
“are mandatory and interpreted literally; thus, a court has no authority to
extend filing periods except as the statute permits.”
Commonwealth v.
Fahy, 737 A.2d 214, 222 (Pa.1999). The period for filing a PCRA petition “is
not subject to the doctrine of equitable tolling.” Id. Instead, the time for
filing a PCRA petition can be extended only if the PCRA permits it to be
extended, i.e., by operation of one of the statutorily enumerated exceptions
to the PCRA time-bar. Id. Consequently, we agree with the trial court and
PCRA counsel that Pabon is inapplicable.
Since there is no equitable tolling of the PCRA’s one year statute of
limitations, we lack jurisdiction over this case unless Maldonado-Rivera
satisfies the plain language of an exception to the one-year statute of
limitations. This he cannot do. Maldonado-Rivera’s conviction became final
on November 24, 2009, ninety days after the Pennsylvania Supreme Court
denied his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3)
(judgment of sentence becomes final at the conclusion of direct review or
the expiration of the time for seeking the review); Commonwealth v.
Owens, 718 A.2d 330, 331 (Pa.Super.1998) (under the PCRA, petitioner's
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judgment of sentence becomes final ninety days after our Supreme Court
rejects his petition for allowance of appeal, since petitioner has ninety
additional days to seek review with the United States Supreme Court). The
one-year statute of limitations expired on November 24, 2010. 42 Pa.C.S. §
9545(b)(1).
Therefore, Maldonado-Rivera’s December 27, 2011 PCRA
petition is untimely.
We reject Maldonado-Rivera’s argument that his petition is timely
under the “interference by government officials” exception to the one year
statute of limitations in section 9545(b)(1)(i). Having carefully reviewed the
cases on government interference, we see no authority for the proposition
that a prison’s failure to provide Spanish speaking paralegals or SpanishEnglish texts constitutes “interference by government officials”.
The
interference exception only applies when government officials “interfere”
with the presentation of a claim in a manner that violates the United States
or Pennsylvania Constitutions. 42 Pa.C.S. § 9545(b)(1)(i). We can find no
authority for the proposition that the failure to provide Spanish speaking
paralegals or Spanish-English texts constitutes “interference” with the rights
of a PCRA petitioner. “Interference” connotes some active attempt to hinder
or impede. See Merriam Webster Online Dictionary (definition of interfere).
At most, a prison’s failure to provide a desired linguistic service to its
prisoners is negligence, not an active attempt to hinder or impede prisoners’
rights. Nor do we think that the failure to provide these services constitutes
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a violation of constitutional rights.
The federal cases on this subject,
including Pabon, refer to this issue as a gap in services warranting equitable
treatment, not as constitutional malfeasance. See Pabon, supra, 654 F.3d
at 399-401; Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2008); Mendoza v.
Carey, 449 F.3d 1065 (9th Cir.2006).
Even if the prison’s failure to provide these resources constitutes
“interference by government officials” in violation of constitutional rights, a
PCRA petition invoking this exception must be filed “within 60 days of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). There
is no evidence in the record that Maldonado-Rivera filed his petition within
sixty days after first learning that his prison failed to provide Spanish
speaking paralegals or Spanish-English texts8.
For these reasons, we affirm the trial court’s order dismissing
Maldonado-Rivera’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
ProthonotaryDate: 8/19/2014
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8
Maldonado-Rivera does not contend that his petition is timely under the
second or third exceptions to the one year statute of limitations (42 Pa.C.S.
§ 9545(b)(1)(ii-iii)). Based on our review of the record, we see no basis for
raising either exception.
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