Com. v. Vidmosko, A.

J-S22003-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN VIDMOSKO :
:
Appellant : No. 1119 MDA 2018
Appeal from the PCRA Order Entered June 14, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002279-2009
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED JULY 30, 2019
Appellant, Allen Vidmosko, appeals pro se from the order denying his
third petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
On December 21, 2009, [Appellant] pled guilty to one count
of rape by forcible compulsion.[1] In exchange, the other charges
pending against him were nolle prossed. The charges arose
between September 1, 2008 and September 30, 2008 when
[Appellant] engaged in sexual intercourse with a 13 year old
victim. On April 6, 2010, he was sentenced to 10 to 20 years. He
was represented by Bernard Brown, Esq.
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1 18 Pa.C.S. § 3121(a)(1).
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* Retired Senior Judge assigned to the Superior Court.
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On April 12, 2010, [Appellant] filed a Motion for
Reconsideration of Sentence which this court denied [on April 13,
2010].[2] On February 2, 2012, [Appellant] filed a Petition for Writ
of Habeas Corpus and to Withdraw Guilty Plea which this court
deemed a Petition for Post Conviction Collateral Relief. Kurt
Lynott, Esq. was appointed to represent [Appellant]. On March 8,
2012, the Commonwealth filed an answer and motion to dismiss.
On March 4, 2013, [Appellant] filed a Motion to Withdraw as
Counsel Pursuant to a Turner-Finley[3] Letter which was granted
by this court. On June 4, 2013, this court issued a Notice of Intent
to Dismiss the petition, and on July 30, 2013, dismissed the
petition. On August 12, 2013, [Appellant] filed a Notice of Appeal
to the Superior Court. On May 14, 2014, the Superior Court
affirmed. [Appellant] filed a Petition for Allowance of Appeal to
the Pennsylvania Supreme Court, which was denied on October
21, 2014.
On July 21, 2015, [Appellant] filed a second PCRA petition.
On October 22, 2015, this court issued a Notice of Intent to
Dismiss the petition, and on December 1, 2015, dismissed the
petition. On December 18, 2015, [Appellant] filed a Notice of
Appeal to the Superior Court. On July 18, 2016, the Superior
Court affirmed.
On February 28, 2018, [Appellant] filed a third PCRA
petition. On April 19, 2018, this court issued a Notice of Intent to
Dismiss the petition. On May 16, 2018, [Appellant] filed an
Objection to the Notice of Intent to Dismiss. On June 14, 2018,
this court dismissed the petition. On July 6, 2018, [Appellant]
filed a Notice of Appeal to the Superior Court, and this court
ordered [Appellant] to file a concise statement of the matters
complained of on appeal. [Appellant] has not yet filed a concise
statement.
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2The PCRA court opinion states that the motion for reconsideration was denied
on April 12, 2010, the same date it was filed. The docket, however, reflects
that the motion for reconsideration was denied on April 13, 2010.
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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PCRA Court Opinion, 8/30/18, at 1-2. The PCRA court filed its Pa.R.A.P.
1925(a) opinion on August 30, 2018.
Appellant presents the following issue for our review: “Did the P.C.R.A.
Court err in denying the Post Conviction Relief Act Petition without a hearing
by declaring the Post Conviction Relief Act Petition facially untimely when
[Appellant] filed the instant Petition timely within the allotted sixty (60) days
of discovering the school records?” Appellant’s Brief at 4. Our standard of
review of an order denying PCRA relief is whether the record supports the
PCRA court’s determination and whether the PCRA court’s determination is
free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
2011). The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record. Id.A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence
“becomes 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.
§ 9545(b)(3).
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However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.4 A petition invoking one of these exceptions must be filed within
one year of the date the claim could first have been presented. 5 42 Pa.C.S.
§ 9545(b)(2).
Our review of the record reflects that Appellant was sentenced on April
6, 2010. As stated, Appellant filed a timely motion for reconsideration on April
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4 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
5 Until recently, a petition invoking an exception was required to be filed within
sixty days of the date the claim could have been presented. However, Act
146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now
provides that a PCRA petition invoking a timeliness exception must be filed
within one year of the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, § 2 and
§ 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or
thereafter.”). Although applicable to Appellant’s instant petition, the change
in the law from sixty days to one year does not impact our analysis.
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12, 2010, which motion was denied on April 13, 2010. Appellant did not file
a direct appeal.
Accordingly, Appellant’s judgment of sentence became final on May 13,
2010, when the time for seeking a direct appeal with this Court expired. See
42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes 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.”); Pa.R.A.P. 903(a) (providing that
“notice of appeal ... shall be filed within 30 days after the entry of the order
from which the appeal is taken”). Therefore, Appellant had to file the current
PCRA petition by May 13, 2011, in order for it to be timely. See 42 Pa.C.S.
§ 9545(b)(1) (a PCRA petition must be filed within one year of the date that
the judgment of sentence becomes final). Appellant did not file the instant
PCRA petition until February 28, 2018. Thus, the petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA petition,
his petition nevertheless may be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within one year of the date the exception could be asserted. 42
Pa.C.S. § 9545(b)(2). It is the petitioner’s burden “to allege and prove that
one of the timeliness exceptions applies.” Commonwealth v. Whitehawk,
146 A.3d 266, 269–270 (Pa. Super. 2016).
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Appellant argues that records from the Philadelphia Education
Department reflect “his level of education as well as his inability to properly
litigate based upon mental handicap.” Appellant’s Brief at 10. Appellant
maintains that “[w]ithout the proof of these documents provided by the
Education department, [Appellant] would not be able to present documental
proof of said illiteracy and mental deficiency.” Id. at 11. Appellant posits that
he “has clearly found evidence that places him well within the realm of newly
discovered evidence.” Id. at 11. Thus, it appears Appellant is arguing that
the newly discovered facts exception to the time-bar applies in this case.
“The timeliness exception set forth in 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.” Commnowealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).
Due diligence demands that the petitioner take reasonable steps
to protect his own interests. A petitioner must explain why he
could not have learned the new fact(s) earlier with the exercise of
due diligence. This rule is strictly enforced. Additionally, the focus
of this exception “is on the newly discovered facts, not on a newly
discovered or newly willing source for previously known facts.”
Id. (internal citations omitted).
Appellant has failed to explain why he could not have learned of these
alleged new facts earlier with the exercise of due diligence. Indeed, as stated
by Appellant, these documents were school records. Appellant’s Brief at 12.
Thus, this evidence was available to Appellant from the time he was in the
Philadelphia Education system. As a result, Appellant has failed to establish
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that he could not have learned of this information earlier by the exercise of
due diligence. Moreover, despite asserting that he filed his petition within
sixty days of discovering this evidence, id. at 8, Appellant has failed to plead
any facts regarding when he discovered this information. Accordingly,
Appellant has failed to establish the application of the newly discovered facts
exception to the PCRA time-bar in this case. Consequently, because the
instant PCRA petition was untimely and no exceptions apply, the PCRA court
lacked jurisdiction to address the claims presented and grant relief. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear untimely petition).6
Order affirmed.
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6 We also note that Appellant failed to file his court-ordered Pa.R.A.P. 1925(b)
statement. Accordingly, if Appellant’s PCRA petition had been timely filed and
the PCRA court had jurisdiction to entertain it, Appellant’s claim would be
waived for his failure to file a Pa.R.A.P. 1925(b) statement. See
Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (“From this date
forward, in order to preserve their claims for appellate review, [a]ppellants
must comply whenever the trial court orders them to file a Statement of
Matters Complained of on Appeal pursuant to Rule 1925. Any issues not
raised in a 1925(b) statement will be deemed waived.”) (quoting
Commonwealth v. Lord, 719 A.2d 484, 491 (Pa. 2011)) (emphasis in
original)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/2019
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