J-S26028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ULYSSES S. DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1357 WDA 2019

Appeal from the PCRA Order Entered August 12, 2019

In the Court of Common Pleas of Erie County Criminal Division at No(s): 

CP-25-CR-0000652-2010

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 01, 2020

Ulysses S. Diaz appeals pro se from the order dismissing his second 

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 

9541-9546. We vacate and remand. 

This case stems from Diaz’s 2010 conviction for attempted robbery and 

related offenses. After a jury convicted Diaz, the trial court sentenced him to 

84 to 168 months’ incarceration on November 12, 2010, and this Court 

affirmed the judgment of sentence. Commonwealth v. Diaz, 37 A.3d 1233

(Pa.Super. 2011) (unpublished memorandum). Thereafter, Diaz filed a PCRA 

petition and was granted the reinstatement of his right to file a petition of 

allowance of appeal with the Pennsylvania Supreme Court. Thus, on May 23, 

2013, Diaz filed a counseled petition for allowance of appeal with our Supreme 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Court, which that Court denied on September 17, 2013. Commonwealth v. 

Diaz, 74 A.3d 1029 (Pa. 2013). Diaz did not seek review with the United 

States Supreme Court. 

Diaz filed a first PCRA petition in January 2015, and the PCRA court 

appointed counsel, who filed a petition to withdraw and a no-merit letter. 

Ultimately, the PCRA court granted counsel’s petition to withdraw and 

dismissed Diaz’s petition as untimely. Diaz appealed in January 2017 and we 

affirmed. See Commonwealth v. Diaz, 193 WDA 2017 (Pa.Super. filed 

October 4, 2017) (unpublished judgment order).

Diaz filed the instant pro se PCRA petition on July 5, 2019. Diaz 

contended that his PCRA attorney failed to inform him that this Court had 

affirmed the dismissal of his first PCRA petition, and he only learned of this 

Court’s ruling in November 2018, after he wrote to this Court to inquire about 

his case. He contended that counsel thus deprived him of the opportunity to 

seek allowance of appeal in the Pennsylvania Supreme Court. 

The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss 

Diaz’s petition as untimely, and Diaz filed a timely response. The PCRA court

initially dismissed Diaz’s petition without reference to his response but 

ultimately considered the objections and then issued an order re-dismissing 

the petition as untimely.

Diaz filed a timely notice of appeal and the PCRA court issued an order 

requiring Diaz to file a Pa.R.A.P. 1925(b) statement within 21 days. The order 

was entered on September 10, 2019, giving Diaz until October 1, 2019, to file 
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a timely statement. The PCRA court issued an order, on October 11, 2019, 

concluding Diaz had waived all issues on appeal by failing to file a timely Rule 

1925(b) statement.

Diaz raises the following issues: 

1. Whether [Diaz] filed with the lower court a timely 

Pa.R.A.P. 1925(b) statement?

2. Whether [Diaz] provided the lower court with sufficient 

evidence to invoke subsection 9545 (b)(1)(ii), i.e., the 

newly discovered facts exception under 42 Pa.C.S.A. §[§] 

9541-9546, i.e., the Post Conviction Relief Act (PCRA) 

statute?

Diaz’s Br. at 4. 

When reviewing the denial or grant of relief under the PCRA, “[w]e must 

determine whether the PCRA court’s ruling is supported by the record and free 

of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 

2018) (citation omitted).

In his first issue, Diaz contends that the trial court erred by concluding 

he failed to file a timely Rule 1925(b) statement. Issues not included in a 

court-ordered timely Pa.R.A.P. 1925(b) statement are waived. See Pa.R.A.P. 

1925(b)(4)(vii). However, under the prison mailbox rule, courts “deem a pro 

se document filed on the date it is placed in the hands of prison authorities for 

mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa.Super. 

2011). Further, “while the prisoner mailbox rule uses the term ‘filed,’ the 

document must at least be addressed to a proper filing office within the Unified 

Judicial System in order to complete the filing.” Id. at 1282. 
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Here, the PCRA court’s order required Diaz to file a Rule 1925(b) 

statement by October 1, 2019. Diaz gave a Rule 1925(b) statement to prison 

authorities for mailing on September 30, 2019, as evidenced by the date on 

his statement and the date listed on his Department of Corrections “cash slip.” 

Further, the certified record includes the envelope Diaz used to mail his Rule 

1925(b) statement, and it was properly addressed to the clerk of courts and 

judge’s chambers, but bears a post mark of October 4, 2019. However, the 

lower court clerk did not docket Diaz’s Rule 1925(b) statement until October 

15, 2019, thus prompting the lower court to incorrectly conclude that Diaz had 

not filed a timely Rule 1925(b) statement. We thus agree with Diaz that he 

filed a timely Rule 1925(b) statement, pursuant to the prisoner mailbox rule.

See Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa.Super. 2007).

Next, we turn to Diaz’s contention that the trial court erred by dismissing 

his PCRA petition as untimely. A petitioner has one year after the judgment of 

sentence becomes final to file a PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). 

A judgment of sentence becomes 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.A. § 9545(b)(3).

When a petitioner files a PCRA petition after that deadline, the petitioner 

bears the burden of pleading and proving at least one of the PCRA’s time-bar 

exceptions. These exceptions are: 
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(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).

Any petition attempting to invoke these exceptions “shall be filed within 

one year of the date the claim could have been presented.” 42 Pa.C.S.A. § 

9545(b)(2). This deadline increased from 60 days to one year, effective

December 24, 2018. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. The new, 

extended deadline applies to claims arising on or after December 24, 2017. 

Id.

In this case, Diaz’s judgment of sentence became final on December 16, 

2013, when the time to file a petition for a writ of certiorari with the United 

States Supreme Court expired. U.S. Sup. Ct. Rule 13. Therefore, the one-year 

deadline expired on December 16, 2014 and the instant petition, which Diaz 

filed in July 2019, is facially untimely. Accordingly, the PCRA court lacked 

jurisdiction over the instant petition unless Diaz pleaded and proved at least 

one of the time-bar exceptions. See Commonwealth v. Albrecht, 994 A.2d 

1091, 1093 (Pa. 2010). 
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Diaz argues that the newly-discovered fact exception under section 

9545(b)(1)(ii) renders his petition timely. Diaz’s Br. at 10-14. He contends 

that his PCRA attorney failed to inform him that this Court dismissed his 

petition on October 4, 2017. Therefore, Diaz avers that he was deprived of 

the opportunity to file a petition for allowance of appeal with the Pennsylvania 

Supreme Court.

Diaz’s argument that his former PCRA counsel effectively abandoned 

him constitutes a “newly-discovered fact” under section 9545(b)(1)(ii). See 

Commonwealth v. Williamson, 21 A.3d 236, 242 (Pa.Super. 2011) (holding

that “counsel’s failure to file a timely petition for allowance of appeal could be 

considered a newly-discovered fact for purposes of section 9545(b)(1)(ii)”).

Further, although this Court has concluded that allegations regarding 

the failure of PCRA counsel to file a petition of allowance of appeal with our 

Supreme Court fall within the ambit of section 9545(b)(1)(ii), we have also 

confirmed that petitioners still must comply with the timeliness requirements 

of section 9545(b)(2). Id. Pursuant to the version of section 9545(b)(2) in 

effect when Diaz’s claim arose, Diaz had one year in which to raise his newlydiscovered fact claim. His instant petition, filed in July 2019, was within a year 

from when Diaz alleges his claim arose in November 2018.

Having concluded that Diaz timely raised the newly-discovered fact 

exception, we must still consider whether he meets the requirements of that 

exception. Commonwealth v. Bennett, 930 A.2d 1264, 1274 (Pa. 2007). 

The newly-discovered fact exception requires a petitioner to establish that: 
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(1) “the facts upon which the claim was predicated were unknown;” and (2) 

the facts “could not have been ascertained by the exercise of due diligence.” 

42 Pa.C.S.A. § 9545(b)(1)(ii). “[T]he due diligence inquiry is fact-sensitive 

and dependent upon the circumstances presented.” Commonwealth v. 

Burton, 121 A.3d 1063, 1070 (Pa.Super. 2015) (en banc) (footnote omitted).

“[D]ue diligence requires neither perfect vigilance nor punctilious care, but 

rather it requires reasonable efforts by a petitioner, based on the particular 

circumstances, to uncover facts that may support a claim for collateral relief.” 

Id. at 1071.

Such a determination requires further fact-finding in this case. Bennett,

930 A.2d at 1274. Diaz did not learn that this Court had affirmed the denial 

of his PCRA petition, and that his counsel had not filed a petition for allowance 

of appeal, until approximately a year and a half after the fact. We cannot say 

as a matter of law that his actions did not amount to due diligence under the 

circumstances. A year and a half is not such an inordinate time to resolve an 

appeal as to render his not asking about the status of his appeal earlier not 

duly diligent. Thus, we remand for the PCRA court to conduct an evidentiary 

hearing to determine whether Diaz exercised due diligence.

Order vacated. Case remanded for proceedings consistent with this 

memorandum. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2020