Com. v. Velasquez, B.

• Court: Superior Court of Pennsylvania
• Decided: August 20, 2014
• Docket: 335 EDA 2013
• Status: Unpublished

Opinion

J-S43011-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BENJAMIN VELASQUEZ

Appellant No. 335 EDA 2013

Appeal from the PCRA Order January 10, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0418641-1974

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 20, 2014

Appellant, Benjamin Velasquez, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his serial petition

filed under the Post Conviction Relief Act -

9546. On January 14, 1975, a jury convicted Appellant of first degree

murder and related offenses. The court sentenced Appellant on May 19,

1975, to life imprisonment, which was finally affirmed on June 3, 1977. On

June 1, 2012, Appellant filed pro se his sixth/current PCRA petition, which

the court dismissed as untimely.1 Appellant filed a timely pro se notice of

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1 The record indicates the PCRA court did not give Appellant notice of its intent to dismiss the current PCRA petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant, however, has not challenged the absence of (Footnote Continued Next Page)

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*Former Justice specially assigned to the Superior Court. J-S43011-14

appeal on January 22, 2013, and timely filed his court-ordered Pa.R.A.P.

1925(b) statement.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

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

becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii). A petitioner asserting a timeliness exception must file a

petition within sixty days of the date the claim could first have been

presented. 42 Pa.C.S.A. § 9545(b)(2). Section 9545(b)(1)(ii) requires the

petitioner to allege and prove facts unknown to him, which he could not

have ascertained by the exercise of due diligence. See 42 Pa.C.S.A. §

9545(b)(1)(ii).

_______________________ (Footnote Continued)

the Rule 907 notice on appeal, which constitutes waiver of that claim. See Commonwealth v. Boyd, 923 A.2d 513, 514 n. 1 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). Moreover, even if raised, the issue does not automatically warrant remand where the petition is unquestionably untimely. See Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000). See also Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (stating same).

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I

September 1, 1977, upon expiration of the time to file a petition for writ of

certiorari. See U.S.Sup.Ct. Rule 22, effective July 1, 1970 to June 29, 1980.

Appellant filed his sixth/current petition on June 1, 2012, almost thirty-five

years after the judgment became final; thus, it is patently untimely. See 42

Section 9545(b)(1)(ii) by contending the trial court lacked subject matter

argument alleges a standing rule of law, not a newly discovered fact. See

Commonwealth v. Baroni, 795 A.2d 1007, 1010 (Pa.Super. 2002)

(holding discovery of standing rule of law does not constitute concrete fact

for purposes of new-facts exception). Therefore, Section 9545(b)(1)(ii)

See id. Accordingly, the PCRA 2

Order affirmed. ____________________________________________

2 Appellant alleges he filed a supplemental PCRA petition on November 26, 2012, in which he raised a claim regarding Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). Nevertheless, the record does not contain a supplemental petition. Moreover, Martinez was filed on March 20, 2012, and Appellant filed his current petition more than 60 days later, on June 1, 2012. Thus, Martinez can afford Appellant no relief. See Commonwealth v. Saunders, 60 A.3d 162 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 72 A.3d 603 (2013) (explaining Martinez applies in context of federal habeas corpus law and is of no moment to timeliness analysis under PCRA); Commonwealth v. Brandon, 51 A.3d 231 (Pa.Super. 2012) (explaining 60-day period runs from date of filing of underlying judicial decision).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014

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