Com. v. Mulero, E.

J-S33027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC GARCIA MULERO :
:
Appellant : No. 1335 EDA 2022
Appeal from the PCRA Order Entered April 12, 2022
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001727-2019
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
JUDGMENT ORDER BY KING, J.: FILED DECEMBER 12, 2022
Appellant, Eric Garcia Mulero, appeals from the order entered in the
Northampton County Court of Common Pleas, which dismissed as untimely his
first petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The relevant facts and procedural history of this case are as follows. On
March 12, 2020, a jury convicted Appellant of attempted murder, two counts
of aggravated assault, and firearms not to be carried without a license. On
June 19, 2020, the court sentenced Appellant to an aggregate term of 23 to
46 years’ imprisonment. Appellant timely filed a post-sentence motion on
June 25, 2020, which the court denied on July 21, 2020. On August 21, 2020,
Appellant filed a counseled notice of appeal. This Court quashed the appeal
as untimely on December 14, 2020, because Appellant had filed his notice of
J-S33027-22
appeal one day beyond the 30-day deadline.
On April 19, 2021, appellate counsel sent a letter to Appellant advising
him that counsel had rendered ineffective assistance by filing Appellant’s
appeal one day late. Appellate counsel instructed Appellant to file a PCRA
petition raising appellate counsel’s ineffectiveness and to seek reinstatement
of his direct appeal rights.1 On October 14, 2021, Appellant filed a pro se
PCRA petition. The court appointed PCRA counsel, who filed an amended
petition on November 17, 2021, claiming appellate counsel was ineffective in
failing to file a timely direct appeal and requesting reinstatement of Appellant’s
direct appeal rights nunc pro tunc.
On April 12, 2022, the PCRA court dismissed the petition as untimely.
Appellant timely filed a notice of appeal on May 9, 2022. The next day, the
court ordered Appellant to file a concise statement of errors per Pa.R.A.P.
1925(b). Appellant timely filed his Rule 1925(b) statement on May 18, 2022.
Appellant raises one issue for our review:
Whether [Appellant], is entitled to relief under the Post-
Conviction Relief Act in the form of the grant of leave to file
a notice of appeal nunc pro tunc, reinstatement of appellate
rights, as the result of the ineffectiveness assistance of prior
counsel for filing a direct appeal one day late?
____________________________________________
1 In the letter, appellate counsel advised Appellant to “act on this as soon as
possible” based on the PCRA’s one-year time limit. Nevertheless, appellate
counsel did not inform Appellant of the precise date by which he would need
to file his PCRA petition to render the petition timely filed. Appellate counsel
sent another letter to Appellant dated May 13, 2021, enclosing the April 19,
2021 letter because counsel stated his original April 19, 2021 letter was not
delivered to Appellant.
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(Appellant’s Brief at 4).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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.A. § 9545(b)(3). The statutory
exceptions to the PCRA time-bar allow very limited circumstances to excuse
the late filing of a petition; a petitioner must also assert the exception within
the time allowed under the statute. 42 Pa.C.S.A. § 9545(b)(1) and (b)(2).
Instantly, Appellant’s judgment of sentence became final on August 20,
2020, which was 30 days after the trial court denied Appellant’s post-sentence
motion and the date by which Appellant had to file his direct appeal. See
Pa.R.Crim.P. 720(a) (stating if defendant files timely post-sentence motion,
notice of appeal shall be filed within 30 days of entry of order deciding
motion); 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had until August
20, 2021 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). See
also Commonwealth v. Brown, 596 Pa. 354, 943 A.2d 264 (2008) (holding
that where no timely direct appeal is filed, time period allowed for filing PCRA
petition commences upon expiration of time period allowed for seeking direct
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review; noting that there is no generalized equitable exception to jurisdictional
one-year time bar pertaining to PCRA petitions). Appellant did not file his pro
se PCRA petition until October 14, 2021, which is patently untimely.
Significantly, Appellant did not plead any exception to the PCRA time-bar in
either his pro se PCRA petition or counseled amended PCRA petition as a basis
for the PCRA court’s jurisdiction. Likewise, Appellant cites no exception to the
PCRA time-bar in his appellate brief. Under these circumstances, Appellant’s
current PCRA petition remains time-barred and the PCRA court properly
dismissed it as untimely. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2022
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