Com. v. Pagan, M.

Opinion

J-S43015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MIGUEL ANGEL PAGAN

Appellant No. 2141 MDA 2015

Appeal from the PCRA Order November 4, 2015 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001452-2012; CP-36-CR-0001508-2012

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

JUDGMENT ORDER BY GANTMAN, P.J.:

Appellant, Miguel Angel Pagan, appeals pro se from the order entered

in the Lancaster County Court of Common Pleas, which denied his untimely

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

Pa.C.S.A. §§ 9541-9546. On August 15, 2012, Appellant entered a

negotiated guilty plea to three counts of involuntary deviate sexual

intercourse, and two counts each of statutory sexual assault, unlawful

contact with a minor, and corruption of minors, in connection with

Appellant’s unlawful contact with the 15-year-old Victim between November

25, 2011 and February 10, 2012. The court sentenced Appellant that day in

accordance with the terms of the negotiated plea agreement to an aggregate

term of 8-16 years’ imprisonment. Appellant did not pursue direct review.

On June 22, 2015, Appellant filed an untimely first PCRA petition pro se. J-S43015-16

The court appointed counsel, who filed a motion to withdraw and

accompanying “no-merit” letter on August 27, 2015.1 On August 31, 2015,

Appellant filed a pro se “amended” PCRA petition, which the court forwarded

to counsel.2 On October 16, 2015, the court issued appropriate notice per

Pa.R.Crim.P. 907; Appellant responded pro se on November 2, 2015. That

day, the court granted counsel’s request to withdraw and denied PCRA relief.

Appellant timely filed a pro se notice of appeal on December 2, 2015. On

December 9, 2015, the court ordered Appellant to file a concise statement of

errors per Pa.R.A.P. 1925(b); Appellant timely complied on December 28,

2015.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final; a judgment is deemed final at the conclusion of direct review

or at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(1),

(3). The statutory exceptions to the timeliness provisions allow for very

limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting an exception must file a petition within 60

days of the date the claim could have been presented. See 42 Pa.C.S.A. § ____________________________________________

1 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 2 The amended PCRA petition is not in the certified record.

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9545(b)(1-2). The timeliness exception at Section 9545(b)(1)(ii) requires a

petitioner to demonstrate he did not know the facts upon which he based his

petition and could not have learned those facts earlier by the exercise of due

diligence. Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264

(2007). Due diligence demands that the petitioner take reasonable steps to

protect his own interests. Commonwealth v. Carr, 768 A.2d 1164

(Pa.Super. 2001).

Instantly, Appellant’s judgment of sentence became final on

September 14, 2012, upon expiration of the time for filing a notice of appeal

to this Court. See Pa.R.A.P. 903(a) (explaining notice of appeal shall be

filed within 30 days after entry of order or judgment from which appeal is

taken). Appellant filed the current PCRA petition on June 22, 2015, which is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Nevertheless, Appellant

attempts to invoke the “new facts” exception to the PCRA time-bar at

Section 9545(b)(1)(ii). Specifically, Appellant relies on an affidavit from

Victim, stating her relationship with Appellant was consensual; and she

wanted to testify on Appellant’s behalf had the case proceeded to trial, or at

the sentencing hearing, but counsel failed to consider her as a witness.

Appellant also relies on an affidavit from Victim’s mother discussing

Appellant’s peaceful and good reputation in the community, which

purportedly bolsters Appellant’s averment that his relationship with Victim

was consensual. Assuming without deciding that Appellant met the 60-day

rule by filing his PCRA petition within 60 days of receiving these affidavits in

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late May 2015, Appellant still fails to explain why he could not have

discovered the facts alleged in the affidavits sooner with the exercise of due

diligence. See Bennett, supra; Carr, supra. Therefore, Appellant cannot

satisfy the “new facts” exception, and his petition remains untimely. See 42

Pa.C.S.A. § 9545(b)(1)(ii). Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/17/2016

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