Com. v. DePrimo, T. ( 2020 )

J-S73040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS E. DEPRIMO, :
:
Appellant : No. 1241 MDA 2019
Appeal from the PCRA Order Entered July 10, 2019
in the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002705-2013
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 26, 2020
Thomas DePrimo (“DePrimo”) appeals, pro se, from the Order
dismissing his second Petition for Relief filed pursuant to the Post Conviction
Relief Act (“PCRA”).1 We affirm.
On January 17, 2014, DePrimo pled guilty to one count of failure to
provide accurate registration information, after DePrimo failed to provide a
valid address to the Pennsylvania State Police, in violation of his mandatory
registration requirements under Megan’s Law. He was sentenced to serve
three to six years in prison. On August 18, 2017, DePrimo filed his first PCRA
Petition. He was appointed counsel, who subsequently filed a Motion to
Withdraw as Counsel, and a Turner-Finley2 letter. The PCRA court granted
____________________________________________
1 42 Pa.C.S.A. §§ 9541-9546.
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S73040-19
the Motion to Withdraw, issued a Notice of Intent to Dismiss the PCRA Petition,
and ultimately dismissed the Petition.
DePrimo appealed, and on November 8, 2018, this Court affirmed.3 On
March 7, 2019, DePrimo, pro se, filed the instant PCRA Petition, his second.
After issuing a Notice of Intent to Dismiss the second PCRA Petition, the PCRA
court dismissed the Petition. DePrimo filed a timely Notice of appeal, and a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of
on appeal.
DePrimo raises the following questions for our review:
1.) Does [DePrimo] meet the PCRA timeliness exception for
“[n]ewly [d]iscovered [f]act” under 42 Pa.C.S.[A.]
§ 9545(B)(1)(ii)?
2.) Whether the PCRA [c]ourt erred as a matter of law in
dismissing [DePrimo’s] PCRA petition for having “[n]o [m]erit”
where[,] on January 17, 2014, the [s]entencing [court] failed to
inform [DePrimo] of his [p]ost-[s]entence and [a]ppell[ate]
[r]ights during [s]entencing[,] as mandated in Pa.R.Crim.[P.]
704(c)(3)[?]
Brief for Appellant at 4.
On an appeal from the denial of PCRA relief, our standard of review is
whether the findings of the PCRA court are supported by the record and free
of legal error. Commonwealth v. Breakiron, 781 A.2d 94, 97 n.4 (Pa.
2001). The PCRA requires that a petition for post-conviction relief must be
filed within one year of the date the judgment of sentence becomes final,
____________________________________________
3Commonwealth v. DePrimo, 201 A.3d 830 (Pa. Super. 2018) (unpublished
memorandum).
-2-
J-S73040-19
unless the petitioner pleads and proves one of three exceptions set forth at
42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Any petition invoking one of the
exceptions shall be filed within one year of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2). The PCRA’s timeliness requirements
are jurisdictional in nature and a court may not address the merits of the
issues raised if the PCRA petition was not timely filed. Commonwealth v.
Murray, 753 A.2d 201, 203 (Pa. 2000).
Here, DePrimo’s judgment of sentence became final on February 16,
2014, thirty days after the time for filing a direct appeal expired. 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903(a). Accordingly, DePrimo had until February 16,
2015, to file the instant Petition. DePrimo filed the instant PCRA Petition more
than four years after the filing date had expired. As a result, DePrimo’s
Petition is untimely on its face, and he must successfully prove that one of the
exceptions to the time bar applies.
We will address both of DePrimo’s arguments together, as they both
involve his invocation of the “newly discovered fact” exception in 42 Pa.C.S.A.
§ 9545(b)(1)(ii). DePrimo argues that the trial court failed to advise him, on
the record, of his specific post-sentencing and appellate rights pursuant to
Rule 704(c)(3); rather, the trial court merely stated that DePrimo had the
right to ask for reconsideration and appeal, and instructed him to review with
his attorney a form listing his specific post-sentence and appellate rights. Id.
at 9-10. DePrimo argues that this constituted a newly-discovered fact, and
that he was unable to raise the issue because his first PCRA counsel did not
-3-
J-S73040-19
properly identify the issue. Id. at 7-8. Rather, DePrimo argues he only was
able to identify the significance of the issue several years later, and with the
assistance of a fellow inmate, while he was reviewing his sentencing
transcripts in the prison’s law library on February 9, 2019. Id. at 9.
The newly-discovered fact exception “has two components, which must
be alleged and proved. Namely, the petitioner must establish that: 1) the
facts upon which the claim was predicated were unknown[,] and (2) could not
have been ascertained by the exercise of due diligence.” Commonwealth v.
Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (citation, internal quotation marks,
and emphasis omitted). Due diligence requires a petitioner to “take
reasonable steps to protect his own interests.” Commonwealth v. Monaco,
996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted). “A petitioner
must explain why he could not have obtained the new fact(s) earlier with the
exercise of due diligence.” Id.We ascertain no error by the PCRA court in its determination that
DePrimo’s claim did not constitute a “newly-discovered fact” pursuant to
subsection (b)(1)(ii). The record shows that DePrimo was sentenced and
informed of his post-sentence rights in 2014; he did not file any petition for
post-conviction relief until 2017; and did not file the instant Petition until
2019. DePrimo has not established that he exercised due diligence in
ascertaining what he argues is a newly-discovered fact. See Monaco.
Though DePrimo argues that another inmate, who possessed some amount of
paralegal experience, informed him of the “newly-discovered fact,” he does
-4-
J-S73040-19
not explain why he was unable to discover this information sooner himself,
when he ostensibly had access to his sentencing transcripts and the
Pennsylvania Rules of Criminal Procedure prior to February 2019. Further,
DePrimo was present at sentencing, and signed a form indicating that he was
informed of his post-sentence rights. Additionally, DePrimo failed to raise this
issue in his first PCRA petition. See 42 Pa.C.S.A. § 9544(b) (stating that “an
issue is waived if the petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior state postconviction
proceeding.”). Thus, DePrimo has failed to plead and prove the timeliness
exception at subsection (b)(1)(ii). Accordingly, we affirm the PCRA court’s
Order dismissing DePrimo’s Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2020
-5-