Com. v. Carrasquillo, V.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2019
• Docket: 155 EDA 2019
• Status: Unpublished

Opinion

J-S39007-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : VICTOR DAVID CARRASQUILLO : : Appellant : No. 155 EDA 2019

Appeal from the PCRA Order Entered December 21, 2018 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0003004-2010

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED AUGUST 19, 2019

Appellant, Victor David Carrasquillo, appeals pro se from the order of

the Lehigh County Court of Common Pleas, which denied his second petition

per the Post-Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). On

April 13, 2011, a jury convicted Appellant of rape, aggravated indecent

assault, and involuntary deviate sexual intercourse. The court sentenced

Appellant on July 11, 2011, to an aggregate of 27 to 60 years’ incarceration;

the court also deemed Appellant a sexually violent predator and imposed

registration for life under Megan’s Law III. This Court affirmed on July 24,

2012. See Commonwealth v. Carrasquillo, 55 A.3d 145 (Pa.Super. 2012)

(unpublished memorandum). Appellant sought no further direct review. On

October 1, 2013, Appellant filed a counseled first PCRA petition, which the

court later denied as untimely. Appellant appealed, but then he discontinued

____________________________________ * Former Justice specially assigned to the Superior Court. J-S39007-19

the appeal on July 14, 2014.

On November 27, 2018, Appellant pro se filed his second, current PCRA

petition, alleging ineffective assistance of first PCRA counsel. Appellant

attached to his petition a letter, dated November 13, 2013, from first PCRA

counsel, in which counsel admitted to Appellant that he had filed Appellant’s

first PCRA petition late. The PCRA court issued Rule 907 notice on December

3, 2018; Appellant responded pro se on December 17, 2018. On December

21, 2018, the PCRA court denied the petition as untimely. Appellant timely

filed a pro se notice of appeal on January 7, 2019. The PCRA court ordered

Appellant on January 9, 2019, to file a concise statement per Pa.R.A.P.

1925(b); Appellant failed to comply.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

shall be filed within one year of the date the underlying judgment of sentence

becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.A. §

9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very

limited circumstances to excuse the late filing of a petition; a petitioner

asserting a timeliness exception must also file the petition within 60 days of

when the claim could first have been presented. 42 Pa.C.S.A. § 9545(b)(1-

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2).1 Generally, “[a] claim for ineffective assistance of counsel does not save

an otherwise untimely petition for review on the merits.” Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 80, 753 A.2d 780, 785 (2000). But see

Commonwealth v. Peterson, ___ Pa. ___, ___, 192 A.3d 1123, 1130-31

(2018) (stating PCRA counsel’s failure to file timely first PCRA petition

constituted ineffectiveness per se that might satisfy new-facts exception to

PCRA time-bar if petitioner raises claim in new PCRA petition within timeframe,

per Section 9545(b)(2), after petitioner first learned of untimely-filed

petition).

Instantly, the judgment of sentence became final on August 23, 2012,

upon expiration of the time to file a petition for allowance of appeal in the

Pennsylvania Supreme Court. See Pa.R.A.P. 1113. Appellant filed his current

petition on November 27, 2018, which is patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1). Appellant tries to invoke the new-facts exception under Section

9545(b)(1)(ii), claiming PCRA counsel rendered ineffective assistance when

he filed the untimely first PCRA petition, citing Peterson, supra.2

Nevertheless, Appellant’s petition indicates he was aware of PCRA counsel’s

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1As of December 24, 2018, Section 9545(b)(2) now allows for one year of the date the claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].

2To the extent Appellant asserts the Peterson case itself constitutes a newly- discovered fact, his claim fails. See Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa.Super. 2012) (explaining subsequent decisional law does not constitute new “fact” per Section 9545(b)(1)(ii)).

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ineffectiveness as of November 13, 2013, the date of counsel’s letter to

Appellant acknowledging same. Appellant, however, filed the current petition

five years later, in November 2018. Thus, Appellant failed to establish first

PCRA’s counsel’s ineffectiveness was unknown to Appellant and could not have

been learned, by the exercise of due diligence, before 2018. See

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (stating to

satisfy new-facts exception of PCRA, petitioner must plead and prove fact was

unknown to him and could not have been discovered sooner with due

diligence). Therefore, Appellant’s current petition remains time-barred.

Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/19

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