Com. v. Virola, P.

J-S45026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PEDRO VIROLA
Appellant No. 1881 EDA 2013
Appeal from the PCRA Order of June 7, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009220-2007
BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*
MEMORANDUM BY WECHT, J.: FILED AUGUST 06, 2014
petition for relief pursuant to the Post
Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA Court provided the following summary of the factual and
procedural history of this case:
On numerous occasions between September 1, 2005, and
December 1, 2006, [Virola] sexually assaulted [J.O.], a 13-year-
old girl at her . . . home in Philadelphia. [Virola], who lived with
the victim and her mother, repeatedly and vaginally raped the
finger into her vagina. [Virola] eventually moved out of the
told her mother what had happened. The mother subsequently
contacted the police.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S45026-14
testimony omitted).
On January 28, 2008, [Virola] entered a negotiated nolo
contendere plea . . . to charges of Rape Forcible Compulsion,
[18 Pa.C.S.A. § 3121;] Aggravated Indecent Assault Without
Consent, [18 Pa.C.S.A. § 3125;] Endangering the Welfare of
Children (EWOC), [18 Pa.C.S.A. § 4304; Involuntary Deviate
Sexual Intercourse (IDSI), 18 Pa.C.S.A. § 3123;] and Corruption
of Minors (COM) [18 Pa.C.S.A § 6301. The trial court] sentenced
[Virola] to seven-and-a-half (7.5) to twenty (20) years
incarceration followed by ten (10) years probation. On
December 8, 2008, [the trial court] vacated the previous
sentence and re-sentenced [Virola] to seven and a half (7.5) to
twenty-five (25) years incarceration followed by ten (10)
years probation.
On October 21, 2011, [Virola] filed a [PCRA] Petition. On
September 14, 2012, an amended PCRA Petition was filed. On
April 11, 2013, [the PCRA court] filed a [Pa.R.Crim.P.] 907 Letter
of Intent to Dismiss the PCRA Petition because it was untimely.
[Virola] had not invoked an exception to the PCRA timeliness
provisions. On June 7, 2013, [the PCRA court] formally denied
the PCRA petition. On June 21, 2013, [Virola] filed a Notice of
Appeal along with a Statement of [Errors Complained of on
Appeal] . . . .
P.C.O. at 1-2 (footnotes omitted).
en it
Brief at 3.
The PCRA time limits are jurisdictional, and must be strictly construed,
regardless of the potential merit of the claims asserted. Commonwealth v.
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Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). A court lacks jurisdiction
to reach the merits of a PCRA petition if it is untimely. Id.
Despite facial untimeliness, a PCRA petition will be considered timely if
the petitioner pleads and proves one of the three exceptions to the one-year
time limit enumerated in subsection 9545(b) of the PCRA, which provides:
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.
42 Pa.C.S.A. § 9545(b). When an appellant files a facially untimely PCRA
petition, and fails to plead and prove one or more of the exceptions to the
one-year jurisdictional time limit, the petition is untimely and we
must deny the appellant relief. Commonwealth v. Gamboa-Taylor, 753
A.2d 780, 783 (Pa. 2000). Even when one of the exceptions may apply to a
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given petition, it will excuse the untimeliness only if the petition was filed
within sixty days of the date that the conditions underlying the exception
came to light. Id. at 784.
2008. Virola did not file a direct appeal. Thus, his judgment of sentence
became final thirty days later, when his time in which to file the appeal
elapsed. Pursuant to subsection 9545(b), the time within which Virola could
file a timely PCRA petition ended on or about January 8, 2010. As his PCRA
petition was not filed until October 21, 2011, it was facially untimely.
Further, in his PCRA petition, Virola did not allege specifically that any of the
three exceptions to the one-year time limit applied.
Instead, in his amended PCRA petition, Virola alleged that he was
abandoned by his counsel because his counsel did not file a direct appeal.
When counsel has abandoned a petitioner, our Supreme Court has
determined that such abandonment may be sufficient to invoke section
9545(b)(1)(ii), the newly discovered facts exception. Commonwealth v.
Bennett, 930 A.2d 1264, 1274 (Pa. 2007).
In Bennett, the petitioner filed a PCRA petition and an amended PCRA
petition, both of which were denied. Appointed counsel did not file a notice
of appeal, but the petitioner filed a pro se notice of appeal and a Rule
1925(b) statement. New counsel was appointed, but the appeal was
dismissed by this Court when counsel did not file a brief. Id. at 1266.
Approximately three months after the dismissal, the petitioner filed a second
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pro se PCRA petition. Id. at 1267. The Supreme Court determined that the
petitioner had alleged sufficient facts to demonstrate that he was abandoned
by counsel and to invoke the section 9545(b)(1)(ii) exception. Id. at 1274.
The Court also determined that the petitioner did not know that his appeal
had been dismissed because the notice had been sent to appointed counsel
and that the petitioner acted with due diligence in filing his second PCRA
petition upon learning of the dismissal. Id. at 1275. Interpreting Bennett,
we have held that an appellant must also plead that the PCRA petition was
filed within sixty days of learning of the abandonment. Commowealth v.
Geer, 936 A.2d 1075, 1078 (Pa. Super. 2007).
Here, Virola alleged that he asked his counsel to file a direct appeal.
Virola also did not allege or plead that he wrote to his counsel or to the
courts to check the status of his appeal, or that he in any way followed up
on that request. Unlike in Bennett, Virola did not file a pro se appeal or a
Rule 1925(b) statement to demonstrate his intent to appeal. Virola did not
plead that he was unaware that an appeal had not been filed or that he did
anything in the approximately three years between his judgment of sentence
and PCRA petition that would demonstrate the exercise of due diligence.
Moreover, Virola did not plead that that he filed his PCRA petition within
sixty days of learning no notice of appeal was filed, as is required by Geer.
The docket shows no action by Virola and he does not allege that he took
any. Thus, Virola has not demonstrated that he acted with the necessary
due diligence. Virola has not plead sufficiently that section 9545(b)(1)(ii) or
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applies. Because no exception
appli
to consider it.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2014
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