J-S16016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EFRAIN RODRIGUEZ                           :
                                               :
                      Appellant                :   No. 1141 MDA 2017

                  Appeal from the PCRA Order July 3, 2017
In the Court of Common Pleas of Lebanon County Criminal Division at No(s):
                          CP-38-CR-0001762-2013

BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 04, 2018

        Efrain Rodriguez (Appellant) appeals pro se from the order denying his

first Post Conviction Relief Act1 (“PCRA”) petition because it was untimely filed.

We affirm.

        On July 24, 2014, Appellant entered a negotiated guilty plea to one

count each of aggravated indecent assault of a complainant less than 16 years

old, aggravated indecent assault of a child, and endangering the welfare of a




____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.
J-S16016-18


child,2 and two counts each of indecent assault and corruption of minors.3 On

November 19, 2014, the trial court sentenced Appellant to an aggregate term

of 5 to 15 years’ imprisonment. Appellant did not file a direct appeal.

        On August 22, 2016, Appellant filed a pro se PCRA petition, asserting,

without further explanation, that: (1) he pled to charges that did not exist at

the time he committed the offenses; and (2) the facts upon which his claim

was predicated were unknown to him and could not have been ascertained by

due diligence. The Commonwealth filed a response, arguing that Appellant’s

petition was untimely filed. See 42 Pa.C.S.A. § 9545(b)(1).

        The PCRA court appointed Greer H. Anderson, Esquire to represent

Appellant. Attorney Anderson filed a Turner/Finley4 petition to withdraw,

explaining that on March 18 and April 11, 2016, Appellant requested from the

trial court copies of the police discovery, the affidavit of probable cause, and

victim statements.       Counsel’s petition clarified that Appellant’s August 22,

2016, pro se PCRA claim was that after review of these documents, Appellant

learned he was sentenced under criminal statutes that, while in effect at the

time of his sentencing in 2014, were not in effect when the offenses were

____________________________________________


2   18 Pa.C.S.A. §§ 3125(a)(8), (b), 4304(a)(1).

3 18 Pa.C.S.A. §§ 3126(a)(8), 6301(a)(1)(ii). The parties agreed to a
minimum sentence of 5 years’ imprisonment and agreed to have the trial court
set the maximum sentence.

4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


                                           -2-
J-S16016-18


committed. Counsel further explained that Appellant intended to argue that

his plea counsel was ineffective for not objecting to the trial court’s failure to

sentence him according to the earlier statutes. Counsel concluded, however,

that Appellant’s petition was untimely filed.     Appellant filed a response to

Attorney Anderson’s petition to withdraw, reiterating that he was entitled to

relief because he exercised reasonable due diligence to obtain the information

which showed the trial court imposed an illegal sentence.

       The PCRA court granted Attorney Anderson’s petition to withdraw and

issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s PCRA petition

without a hearing. Appellant filed a pro se response. On July 3, 2017, the

court dismissed the petition, reasoning that the petition was filed beyond the

PCRA’s general one-year filing period and Appellant did not qualify for the

“newly-discovered” exception because: (1) “all the information upon which

[he] relie[d]” was provided to him prior to the entry of his guilty plea; (2) the

information “was a matter of public record and [would have been] available

to him through a timely search conducted within the one-year time period;”5

____________________________________________


5 The PCRA court noted our Supreme Court’s recent decision                      in
Commonwealth v. Burton, 158 A.3d 618 (Pa. 2017), which held:

       [T]he presumption that information which is of public record
       cannot be deemed “unknown” for purposes of subsection
       9545(b)(1)(ii) does not apply to pro se prisoner petitioners. . . .

       Accordingly, consistent with the statutory language, in
       determining whether a petitioner qualifies for the exception to the



                                           -3-
J-S16016-18


and (3) Appellant provided no explanation why he was unable to conduct his

investigation within the one-year filing period.          PCRA Court Opinion at 8,

citing 42 Pa.C.S.A. § 9545(b)(1)(ii).

       Appellant took a timely pro se appeal and complied with the court’s order

to file a Pa.R.A.P. 1925(b) statement. He presents two issues for our review:

       (1) Did the PCRA Court err in dismissing Appellant’s first PCRA
       petition as untimely pursuant to [42] PA.C.S.[A. §] 9545, when
       Appellant properly presented timeliness exceptions with PCRA
       counsel and with the lower court prior to counsel’s withdrawal?

       (2) Did the PCRA Court err in denying Appellant an evidentiary
       hearing on the matter?

Appellant’s Brief at 2. The argument section of Appellant’s brief, however, is

organized under two headings:                  “Timeliness of Petition” and “Illegal

Sentence.” Id. at 9, 14.

       In his first issue, Appellant asserts that his PCRA petition was timely



____________________________________________


       PCRA’s time requirements pursuant to subsection 9545(b)(1)(ii),
       the PCRA court must first determine whether “the facts upon
       which the claim is predicated were unknown to the petitioner.” In
       some cases, this may require a hearing. After the PCRA court
       makes a determination as to the petitioner’s knowledge, it should
       then proceed to consider whether, if the facts were unknown to
       the petitioner, the facts could have been ascertained by the
       exercise of due diligence, including an assessment of the
       petitioner’s access to public records.

See Burton, 158 A.3d at 638 (emphasis added). The PCRA court held
that Burton did not apply to Appellant in this case because the
information upon which Appellant relied was provided to him prior to his
guilty plea and would have been available to him after sentencing
through a timely search.

                                           -4-
J-S16016-18


under Section 9545(b)(1)(ii). He contends that in his response to Attorney

Anderson’s Turner/Finley petition, he set forth a detailed discussion of his

“due diligence, including dates, times, and [the] specific course of research he

personally engaged in” to obtain the new information, and that this discussion

explained his delay in filing a PCRA petition.     Appellant’s Brief at 11, 14.

Appellant further claims Attorney Anderson was ineffective for failing to

include this information in his Turner/Finley petition. Appellant also refutes,

without further explanation, the PCRA court’s finding that the information he

obtained would have been available to him through a timely search. Finally,

Appellant maintains that he filed his petition within 60 days of learning of the

new information. He requests an evidentiary hearing to determine whether

he is entitled to relief under Burton.

      “The standard of review for an order denying post-conviction relief is

limited to whether the record supports the PCRA court’s determination, and

whether that decision is free of legal error.” Commonwealth v. Walters,

135 A.3d 589, 591 (Pa. Super. 2016) (citation omitted).

      It is well-established that “the PCRA’s timeliness requirements are
      jurisdictional in nature and must be strictly construed; courts may
      not address the merits of the issues raised in a petition if it is not
      timely filed.” Generally, a PCRA petition must be filed within one
      year of the date the judgment of sentence becomes final unless
      the petitioner meets his burden to plead and prove one of the
      exceptions enumerated in 42 Pa.C.S.A. § 9545(b)(1)(i)–(iii),
      which include . . . the discovery of previously unknown facts or
      evidence that would have supported a claim . . . . 42 Pa.C.S.A. §
      9545(b)(1)[(ii)]. [A] petition invoking any of the exceptions must
      be filed within 60 days of the date the claim first could have been
      presented. ... 42 Pa.C.S.A. § 9545(b)(2)[.]

                                      -5-
J-S16016-18



Id. at 591-92 (some citations omitted) (emphasis added). “The PCRA court

has the discretion to dismiss a petition without a hearing when the court is

satisfied ‘that there are no genuine issues concerning any material fact, the

defendant is not entitled to post-conviction collateral relief, and no legitimate

purpose would be served by further proceedings.’”          Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013).

      Appellant was sentenced on November 19, 2014, and he did not file a

direct appeal. Thus, his judgment of sentence became final on the day his

time for taking an appeal concluded, December 19, 2014. See 42 Pa.C.S.A.

§ 9545(b)(3) (judgment becomes final at conclusion of direct review or at

expiration of time for seeking review); Pa.R.A.P. 903(a) (appeal shall be filed

within 30 days of entry of order).     Appellant had one year, until Monday,

December 22, 2015, to file a PCRA petition. See 1 Pa.C.S.A. § 1908 (when

last day of any period of time referred to in any statute falls on Saturday,

Sunday, or legal holiday, such day shall be omitted from computation); 42

Pa.C.S.A. § 9545(b)(1). The instant petition was filed eight months later, on

August 22, 2016.

      Appellant does not dispute the PCRA court’s observation that the

information upon which his PCRA petition was based — his criminal

information, the affidavit of probable cause, certain discovery, and the victim’s

statements — were provided to or available to him before he pled guilty.

Accordingly, Appellant cannot — and he does not — explain which facts “were

                                      -6-
J-S16016-18


unknown to” him, as required by the newly-discovered evidence exception at

Subsection 9545(b)(1)(ii).     We thus hold that the PCRA court properly

dismissed Appellant’s petition without a hearing for lack of jurisdiction. See

Roney, 79 A.3d at 604; Walters, 135 A.3d at 591-92.

      The second issue in Appellant’s brief is whether his sentences are illegal.

He “asserts that in order for him to have been originally charged under 18

Pa.C.S.[A. §] 3125(b) [(aggravated indecent assault of a child)], he must first

have been charged under a qualifying offense defined in 18 Pa.C.S.[A. §]

3125(a) [(aggravated indecent assault defined)].”       Appellant’s Brief at 15.

Appellant also claims that he was sentenced under a version of the corruption

of minors statute that did not exist when he committed the underlying

offenses and elevated the grading of the offense from a misdemeanor of the

first degree to a felony of the third degree.

      Because Appellant’s PCRA petition was untimely filed, we do not reach

this illegal sentence question. See Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999) (“Although legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one of

the exceptions thereto.”).




                                      -7-
J-S16016-18


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2018




                          -8-
