Com. v. Gasparich, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AARON C. GASPARICH
Appellant No. 1754 MDA 2016
Appeal from the PCRA Order September 29, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-0004383-2010
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2017
Appellant, Aaron C. Gasparich, appeals pro se from the order
dismissing, as both untimely and meritless, his fourth petition for post-
conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
A prior panel of this Court summarized the relevant procedural and
factual history as follows.
On June 29, 2011, Appellant pled guilty to two counts of
involuntary deviate sexual intercourse (IDSI) with a child and
one count of indecent assault. He was sentenced on September
18, 2011, to two mandatory terms of 10 to 20 years’
incarceration for his IDSI offenses, imposed to run concurrently.
Appellant did not file a direct appeal.
On August 23, 2012, Appellant filed a timely, pro se PCRA
petition and counsel was appointed. However, at a hearing
conducted on April 20, 2013, Appellant requested to withdraw
his PCRA petition, which the court granted. On December 29,
2014, Appellant filed a second, pro se PCRA petition, which the
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court ultimately dismissed on April 16, 2015. Appellant did not
file an appeal.
On April 24, 2015, Appellant filed his third, pro se PCRA
petition[.] On May 11, 2015, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s
petition without a hearing on the basis that it was untimely filed.
Appellant filed a pro se response, but the court dismissed his
petition on June 4, 2015. Appellant filed a timely, pro se notice
of appeal, as well as a timely Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
Commonwealth v. Gasparich, 1050 MDA 2015, at 1-2 (Pa. Super., filed
February 1, 2016) (unpublished memorandum).
In his third PCRA petition, Appellant attempted to rely upon Alleyne v.
United States, 133 S. Ct. 2151 (2013), to satisfy the “new constitutional
right” exception of § 9545(b)(1)(iii). Appellant contended that Alleyne
rendered his mandatory minimum sentences illegal. However, the panel
concluded that the trial court correctly determined that Appellant’s reliance
on Alleyne did not satisfy the “new constitutional right” exception because it
does not apply retroactively and, additionally, because Appellant failed to
assert this claim within sixty days of the decision. Therefore, the panel
affirmed the trial court’s dismissal of Appellant’s third PCRA petition.
On August 10, 2016, Appellant filed his fourth, pro se PCRA petition.
The PCRA court again issued Rule 907 notice of intent to dismiss Appellant’s
petition without a hearing, explaining that Appellant’s petition was not only
patently untimely, but also without merit, as Appellant’s claims mirrored
those set forth in his third PCRA petition. Appellant filed a pro se response,
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but the PCRA court dismissed Appellant’s fourth PCRA petition as untimely
and, alternatively, as without merit. This pro se appeal follows.
Prior to addressing Appellant’s substantive claims, we must first
determine whether the PCRA court correctly concluded that Appellant’s latest
pro se PCRA petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
is final, see 42 Pa.C.S.A. § 9545(b)(1), unless the petition alleges and
proves an exception to the time for filing the petition, see id., at subsections
(i)-(iii). A PCRA petition invoking one of these statutory exceptions must “be
filed within sixty days of the date the claims could have been presented.”
Hernandez, 79 A.3d at 651-52 (citing 42 Pa.C.S.A. § 9545(b)(2)).
Exceptions to the time bar must be pled in the petition, and may not be
raised for the first time on appeal. See Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007).
Appellant needed to file the petition at issue by October 19, 2012 in
order for it to be timely. The petition at issue here is blatantly untimely
unless Appellant has satisfied his burden of pleading and proving that one of
the enumerated exceptions applies.
Appellant did not plead any exception to the time bar in his petition.
However, as the claims in Appellant’s fourth pro se PCRA petition largely
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mirror the claims in his third pro se PCRA petition, we can arguably assume
that his citations to Alleyne in his fourth PCRA petition were for the purpose
of satisfying the “new constitutional right” exception of section
9545(b)(1)(ii). In that case, we adopt the reasoning of the prior panel and
find that Appellant’s reliance on Alleyne does not satisfy the timeliness
exception set forth in section 9545(b)(1)(iii). See Gasparich, 1050 MDA
2015, at 4-5.
In sum, Appellant’s latest PCRA petition is untimely and he has failed
to adequately plead any exception to the timeliness requirements of the
PCRA. Thus, the PCRA court properly concluded that it lacked jurisdiction
and correctly denied Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2017
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