Com. v. Mulero, E.

• Court: Superior Court of Pennsylvania
• Decided: December 12, 2022
• Docket: 1335 EDA 2022
• Status: Unpublished

Opinion

J-S33027-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERIC GARCIA MULERO : : Appellant : No. 1335 EDA 2022

Appeal from the PCRA Order Entered April 12, 2022 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0001727-2019

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

JUDGMENT ORDER BY KING, J.: FILED DECEMBER 12, 2022

Appellant, Eric Garcia Mulero, appeals from the order entered in the

Northampton County Court of Common Pleas, which dismissed as untimely his

first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. We affirm.

The relevant facts and procedural history of this case are as follows. On

March 12, 2020, a jury convicted Appellant of attempted murder, two counts

of aggravated assault, and firearms not to be carried without a license. On

June 19, 2020, the court sentenced Appellant to an aggregate term of 23 to

46 years’ imprisonment. Appellant timely filed a post-sentence motion on

June 25, 2020, which the court denied on July 21, 2020. On August 21, 2020,

Appellant filed a counseled notice of appeal. This Court quashed the appeal

as untimely on December 14, 2020, because Appellant had filed his notice of J-S33027-22

appeal one day beyond the 30-day deadline.

On April 19, 2021, appellate counsel sent a letter to Appellant advising

him that counsel had rendered ineffective assistance by filing Appellant’s

appeal one day late. Appellate counsel instructed Appellant to file a PCRA

petition raising appellate counsel’s ineffectiveness and to seek reinstatement

of his direct appeal rights.1 On October 14, 2021, Appellant filed a pro se

PCRA petition. The court appointed PCRA counsel, who filed an amended

petition on November 17, 2021, claiming appellate counsel was ineffective in

failing to file a timely direct appeal and requesting reinstatement of Appellant’s

direct appeal rights nunc pro tunc.

On April 12, 2022, the PCRA court dismissed the petition as untimely.

Appellant timely filed a notice of appeal on May 9, 2022. The next day, the

court ordered Appellant to file a concise statement of errors per Pa.R.A.P.

1925(b). Appellant timely filed his Rule 1925(b) statement on May 18, 2022.

Appellant raises one issue for our review:

Whether [Appellant], is entitled to relief under the Post- Conviction Relief Act in the form of the grant of leave to file a notice of appeal nunc pro tunc, reinstatement of appellate rights, as the result of the ineffectiveness assistance of prior counsel for filing a direct appeal one day late? ____________________________________________

1 In the letter, appellate counsel advised Appellant to “act on this as soon as possible” based on the PCRA’s one-year time limit. Nevertheless, appellate counsel did not inform Appellant of the precise date by which he would need to file his PCRA petition to render the petition timely filed. Appellate counsel sent another letter to Appellant dated May 13, 2021, enclosing the April 19, 2021 letter because counsel stated his original April 19, 2021 letter was not delivered to Appellant.

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(Appellant’s Brief at 4).

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

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

PCRA petition, including a second or subsequent 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 very limited circumstances to excuse

the late filing of a petition; a petitioner must also assert the exception within

the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).

Instantly, Appellant’s judgment of sentence became final on August 20,

2020, which was 30 days after the trial court denied Appellant’s post-sentence

motion and the date by which Appellant had to file his direct appeal. See

Pa.R.Crim.P. 720(a) (stating if defendant files timely post-sentence motion,

notice of appeal shall be filed within 30 days of entry of order deciding

motion); 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had until August

20, 2021 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). See

also Commonwealth v. Brown, 596 Pa. 354, 943 A.2d 264 (2008) (holding

that where no timely direct appeal is filed, time period allowed for filing PCRA

petition commences upon expiration of time period allowed for seeking direct

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review; noting that there is no generalized equitable exception to jurisdictional

one-year time bar pertaining to PCRA petitions). Appellant did not file his pro

se PCRA petition until October 14, 2021, which is patently untimely.

Significantly, Appellant did not plead any exception to the PCRA time-bar in

either his pro se PCRA petition or counseled amended PCRA petition as a basis

for the PCRA court’s jurisdiction. Likewise, Appellant cites no exception to the

PCRA time-bar in his appellate brief. Under these circumstances, Appellant’s

current PCRA petition remains time-barred and the PCRA court properly

dismissed it as untimely. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/12/2022

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