NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 J-S NON-PRECEDENTAL DECSON - SEE SUPEROR COURT.O.P COMMONWEALTH OF PENNSYLVANA Appeee N THE SUPEROR COURT OF PENNSYLVANA GABREL G. OCASO v. Appeant No EDA 2015 Appea from the PCRA Order Juy 7, 2015 n the Court of Common Peas of Phiadephia County Crimina Division at No(s): CP-51-CR BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J. * MEMORANDUM BY OTT, J.: FLED AUGUST 19, 2016 Gabrie G. Ocasio appeas, pro se, from the order entered on Juy 7, 2015, in the Court of Common Peas of Phiadephia County, denying him reief, without a hearing, on his third petition fied pursuant to the Post Conviction Reief Act (PCRA), 42 Pa.C.S et seq. Specificay, the PCRA court determined this petition was untimey. Foowing a thorough review of the submissions by the parties, reevant aw, and the certified record, we affirm on the sound anaysis of the PCRA court and direct the parties to attach a copy of the PCRA court opinion, fied 10/13/2015, in case of further proceedings. * Retired Senior Judge assigned to the Superior Court.

2 J-S nitiay, we note, Our standard of review over the denia of a PCRA petition is we-setted. n reviewing the denia of PCRA reief, we examine whether the PCRA court's determination is supported by the record and free of ega error. Commonweath v. Mitche, A.3d, 2016 WL (Pa. 2016) (fied (7/19/2016) (citations and interna quotation marks omitted). The PCRA court opinion in this matter accuratey recounts the factua and procedura history of this matter. We briefy 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 reated charges. Ocasio was sentenced to a term of ife imprisonment. After his direct appea afforded him no reief, 1 Ocasio fied his first PCRA petition and was represented by James Bruno, Esq. This aso provided no reief to Ocasio. 2 He fied a second PCRA petition, pro se. This petition caimed Bruno was ineffective. The second petition was dismissed as untimey. A pane of our Court affirmed that decision. 3 This petition, Ocasio s third, again raises caims of Bruno s ineffective assistance. Here, Ocasio attempts to evade the timeiness 1 Commonweath v. Ocasio, 919 A.2d 974 (Pa. Super. 2007) (unpubished memorandum). 2 No appea was taken from the dismissa of this petition. 3 See Commonweath v. Ocasio, 2014 WL (3/6/2014) (unpubished memorandum)

3 J-S requirements that doomed his prior petition by caiming he ony recenty discovered Bruno had been suspended from the practice of aw due to menta heath issues. However, the PCRA court appropriatey noted that Ocasio fais to expain how this fact affects his case given that Bruno s suspension from the practice of aw was made retroactive to February 26, 2013 whie Bruno s representation of Ocasio ended in Our review of the certified record discoses the PCRA court s order is based upon the facts of record and is free from error. Accordingy, Ocasio is not entited to reief. 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. Seetyn, Esq. Prothonotary Date: 8/19/ There is some indication that Attorney Bruno s symptoms may have first manifested in However, that is sti we after his reationship with Ocasio terminated

4 Circuated 08/08/ :22 AM N THE COURT OF COMMON PLEAS FRST JUDCAL DSTRCT OF PENNSYLVANA CRMNAL TRAL DVSON COMMONWEALTH OF PENNSYLVANA v. CP-5-CR GABREL OCASO pp# DOCKET NO.: 2419 EDA 2015 OPNON FLED OCT 1 1_ 2015 Crimina Appea.s Unit First Judicia\ Distnct of PA Appeant, Gabrie Ocasio, appeas the Juy 7, 2015, dismissa of his petition for reief pursuant to the Post Conviction Reief Act, 42 Pa. C.S et seq. (PCRA). Foowing review, the Court determined that appeant's petition was untimey and faied to propery invoke an exception to the timeiness requirements. The procedura history is as foows. On September 27, 2005, foowing a jury tria, appeant was found guity. of first degree murder, attempted murder (3 counts), carrying a firearm without a icense, possession of an instrument of crime and aggravated assaut, and sentenced to ife imprisonment foowed by years incarceration for the murder of Francisco Quintana, and the shooting of Brian Norat, Pomy Pomaes and Nichoas 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, respectivey. n addition to his sentence of ife imprisonment without the possibiity of paroe for first degree murder, appeant received years incarceration on each attempted murder charge, to run consecutivey to each other and the ife sentence; 3 Y2-7 years incarceration for carrying a firearm without a icense; 2 Y2-5 years incarceration for possessing an instrument of crime; and 5-10 years incarceration for aggravated assaut, to run concurrent 1

5 j on January 30, 2007, the Superior Court affirmed the judgment of sentence. Appeant's petition for aowance of appea was denied by the Pennsyvania Supreme court on Juy 10, On October 12, 2007, appeant fied a timey pro se PCRA petition caiming that he was entited to reief because of the ineffective assistance of j J tria and appea counse.? On February 27, 2009, foowing independent review of appeant's caims in both the pro se, and amended petitions, and the Commonweath's motion to dismis~, the Court determined that appeant had faied to state a caim which entited him to reief and a notice pursuant to Pa.R.Crim.P. 907, indicating that appeant's petition woud be dismissed without a hearing after twenty days, was fied and served on appeant. On March 6, 2009, appeant fied a pro se response to the 907 notice, i 1-.! caiming that PCRA counse had not communicated that attorney Raymond Roberts be appointed as repacement PCRA counse. n response to appeant's aegations, the Court hed dismissa of appeant's : ~ : _,t. ' petition in abeyance and had PCRA counse respond to appeant's aegations j at the March 17, with him and requesting 2009 isting. Counse represented to the Court that he had in t fact been in contact with appeant, but woud meet with appeant again, and additiona time was given for counse to consut further with appeant and proceed accordingy. On June 18, 2009, PCRA counse fied a suppementa i? amended PCRA petition containing four additiona caims. The Commonweath to a other sentences. 2 Specificay, appeant compained that "tria counse faied to object to mutipe errors," and "direct appea counse faied to fie a proper brief to the Superior Court.". ' i 2

6 fied its motion to dismiss on June 26, Thereafter, the Court reviewed a of the submissions and the appicabe aw and determined that appeant was not entited to PCRA reief. On August 21, 2009, a907 notice was fied and served on appeant. On September 10, 2009, the Court received appeant's prose response to the 907 notice, styed as a "Motion to Vacate the Court's Pa.R.Crim.P. 907 ntention to Dismiss Order and for the Appointment of New PCRA Counse," indicating ony that appeant had forwarded his entire fie to PCRA counse and it had not yet been returned, that counse ony picked up appeant's fie eight days prior to the issuance of the 907 notice, and again requesting that a specific attorney be appointed to repace appointed PCRA counse. The Court reviewed appeant's response and determined that return of his fie and a request to appoint a specific attorney to his case were not issues warranting PCRA reief, and appeant's PCRA petition was dismissed without a hearing on September 11, No appea was taken. On March 12, 2012, appeant fied a second petition for post conviction - :- --~- ---~ r - - -~ ~ - reief caiming that he was eigibe for reief beca 'use of the i;~-f~ctiv~-assts-tance of counse, improper obstruction by government officias of his right to appea where a meritorious appeaabe issue existed, newy discovered excupatory evidence, and because of the imposition of a sentence greater than the awfu maximum. After reviewing appeant's compaints, the record and the controing aw, the Court determined that appeant's petition for reief was untimey. A 907 notice so indicating was fied and served on appeant on February 7, On March 7, 2013, the Court received appeant's response 3

7 to the 907 Notice, compaining that PCRA counse had provided ineffective i 1 j "!! assistance and outining thirty-two caims that he woud have raised on PCRA.3 Review of the caims reveaed that they were either addressed on direct appea, vague and undeveoped or had been raised in the counseed amended and suppementa amended petitions. On March 22, 2013, appeant's second petition for post conviction reief was formay dismissed. The Superior Court affirmed the dismissa on March 6, 2014 and the Pennsyvania Supreme Court denied the petition for aowance of appea on August 19, On December 31, 2014, appeant fied this his third PCRA caiming that a newspaper artice dated November 26, 2014, indicating that his former PCRA counse had been suspended for two years retroactive to his temporary 'suspension in February 2013, due to menta heath issues, amounted to after discovered evidence sufficient to overcome the PCRA time bar. Appeant subsequenty forwarded a copy of a etter from the Office of Discipinary Counse dated February 3, 2015, indicating that PCRA counse by Order dated , N6vemoer3~-2{H4, was su-i;pended from the practice of aw in this Commonweath for a period of two years retroactive to February 26, 2013, to be foowed by a two year period of probation after reinstatement.4 After review of appeant's caims and the record, the Court determined that appeant had not met his burden to show that his petition met a timeiness exception since the PCRA for which counse had been appointed was competed September 11, 3 The docket does not indicate that appeant's response to the 907 Notice was fied. 4 See Fie Reference C

8 2009. n response to the Rue 907 notice, appeant again asserted the caims in his petition and incuded that, "Before a psychoogist identified the disorders in a 2011 diagnosis, determining they caused [PCRA counse] to forget to fie peadings, petitions, and appea notices, as we as provide cients with updates."> The Court did not find that this anguage entited appeant to reief and appeant's PCRA petition was dismissed as untimey on Juy 7, This appea foowed. The standard of review of a PCRA court's grant or denia of reief is imited to examining whether the tria court's determination is supported by -the evidence of record and ""';h.ether it is fre~ of ega error. Commonweath v. Owens, 2000 PA Super 105, 750 A.2d.872 (Pa. Super. 2000). The petition must be timey, as the PCRA's timeiness restrictions are jurisdictiona in nature and are to be stricty construed. Commonweath v. Abu-Jama, 596 Pa. 219, 941 A.2d 1263, (2008). A judgment becomes fina at the concusion of \\ direct review, incuding discretionary review in the Supreme Court of the ~..., : --: ;..! tjnitea-states-and""ie-s-upreme Court.. o'rp~~~~y~ania, or at the expiration of time for seeking the review. Commonweath 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 untimey PCRA petition may be reviewed, when a petitioner invokes and peads one of the exceptions provided in section 9545(b)(), which provides in reevant part: (b) Time for fiing petition.- 5 This appears to be a quote, but appeant does not reference where the anguage is found. 5

9 (1) Any petition under this subchapter, incuding a second or subsequent petition, sha be fied within one year of the date the judgment becomes fina, uness the petition aeges and the petitioner proves that: (i) the faiure to raise the caim previousy was the resut of interference by government officias with the presentation of the caim in vioation of the Constitution or aws of this Commonweath or the.g<:mstitution oraws of the.united States;.. (ii) the facts upon which the caim is predicated were unknown to the petitioner and coud not have been ascertained by the exercise of due diigence; or (iii) the right asserted is a constitutiona right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsyvania after the time period provided in this section and has been hed by that court to appy retroactivey... (2) Any petition invoking an exception provided in paragraph (1) sha be fied within 60 days of the date the caim coud have been presented. '. i '. 42 Pa.C.S_.A. 9545(b)() and (2). t isthe petitioner's burden to pead and prove an exception to the PCRA-timeiness rue. Commonweath v. Backwe, 2007 PA Super 314, 936 A.2d 497, 500 (Pa. Super. Ct. 2007). Appeant asserts that after discovered evidence of PCRA counse's -- menta heath-iss~~s which resuted in his suspensicn f;6~- th~-~~-actic ~ ~r-i;;. - "'.. meet the timeiness requirement of the PCRA. The record shows that PCRA counse was appointed for appeant's first PCRA on Apri 8, On November 7, 2008, counse fied an amended petition compaining of approximatey ten instances where tria and appeate counse aegedy provided ineffective assistance. Thereafter the Court determined that appeant's caims acked merit and fied and served appeant with a Rue 907 notice. On March 6, 2009, appeant fied a pro se response to the 907 notice, 6

10 1 ' 1 j j [ caiming that PCRA counse had not communicated with him and requesting that new counse be appointed to repace PCRA counse. n response to appeant's aegations, the Court hed dismissa of appeant's petition in abeyance and had PCRA counse respond to appeant's aegations on the record at the March 17, 2009 isting; Appeant agreed to remain with counse and, on June 18, 2009, after consuting with appeant; PCRA counse fied a suppementa amended PCRA petition containing four additiona caims. Foowing review of a submissions, a second Rue 907 notice was served on appeant to which appeant responded with a request for appointment of repacement counse. Appeant's PCRA first timey petition was dismissed on September 11, 2009, two years before counse's aeged 2011 diagnosis of menta heath issues and four years before the retroactive date of counse's suspension. Therefore, appeant has faied to demonstrate that his petition meets any of the timeiness exceptions. Accordingy, appeant's PCRA petition is untimey. For the foregoing reasons, appeant's petition for post conviction reief was propery dismissed. BY THE COURT: ~tu~-~ SHELA WOODS-SKPPER, J. 7