J-S18010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUAN M. RIOS                               :
                                               :
                       Appellant               :   No. 769 MDA 2019


               Appeal from the PCRA Order Entered April 26, 2019,
              in the Court of Common Pleas of Lackawanna County,
              Criminal Division at No(s): CP-35-CR-0002011-2010.


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 10, 2020

        Juan M. Rios appeals from the order denying as untimely his petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

        The pertinent facts and procedural history, as gleaned from the certified

record, are as follows. On October 25, 2010, Rios entered a negotiated guilty

plea to three counts of aggravated indecent assault-complainant less than

thirteen years of age. As part of the plea agreement, the Commonwealth

withdrew five other charges. On March 1, 2011, the trial court sentenced him

to an aggregate term of fifteen to thirty years of imprisonment. Rios was not

designated a sexually violent predator, but was required to register for life

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*   Former Justice specially assigned to the Superior Court.
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under Megan’s Law. He filed a motion for reconsideration of sentence, which

the trial court denied on March 9, 2011. Rios did not file a direct appeal.

      On September 10, 2018, Rios filed a “Motion to Be Removed from

SORNA (and Vacate Sentence).”         Because Rios’ judgment of sentence had

already become final, the PCRA court treated this filing as a PCRA petition,

and appointed counsel. On November 13, 2018, PCRA counsel filed a “no-

merit”   letter   and   motion   to   withdraw   pursuant   to   the   dictates   of

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Thereafter, Rios filed

an addendum to his pro se PCRA petition. On March 26, 2019, the PCRA court

issued Pa.R.Crim.P. 907 notice of its intention to dismiss Rios’ petition because

it was untimely filed and because Rios did not plead a time-bar exception. In

the same order, the court granted PCRA counsel’s motion to withdraw. Rios

filed a response. By order entered April 26, 2019, the PCRA court denied Rios’

PCRA petition. This timely pro se appeal followed. Both Rios and the PCRA

court have complied with Pa.R.A.P. 1925.

      Rios’ pro se brief does not contain a statement of his issues. However,

in the argument portion of his brief, Rios claims that he was “denied his Sixth

Amendment right to effective assistance of counsel, when [plea] counsel

withheld exculpatory records” of the child victims from him. Rios’ Brief at




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unnumbered 4.1 Before we consider this claim, we must first consider whether

the PCRA court correctly determined that his current PCRA petition was

untimely filed.

        This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an exception

to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b) (1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these



____________________________________________


1Within his brief, Rios also makes multiple other claims of ineffectiveness of
counsel. As noted infra, because the PCRA court correctly determined that
Rios’ petition was untimely, we lack jurisdiction to address these issues.

2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.




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statutory exceptions must be filed within sixty days of the date the claims

could have been presented. See Pa.C.S.A. § 9545(b)(2).3                   Asserted

exceptions to the time restrictions for a PCRA petition must be included in the

petition, and may not be raised for the first time on appeal. Commonwealth

v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

       Here, because Rios did not file a direct appeal to this Court after he was

sentenced on March 1, 2011, his judgment of sentence became final thirty

days thereafter, or on March 31, 2011. See 42 Pa.C.S.A. § 9545(b)(3). Thus,

for purposes of the PCRA’s time bar, Rios had to file his first PCRA petition by

March 31, 2012. Rios filed the PCRA petition at issue on September 10, 2018.

Thus, the petition is patently untimely, unless Rios has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.             See

Hernandez, supra.

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       (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.A. §§ 9545(b)(1)(i), (ii), and (iii).

3Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.




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       Rios has failed to plead and prove a timeliness exception.             Most

significantly, because he failed to raise any time-bar exception in his petition,

Rios cannot raise one for the first time on appeal. Furgess, supra.4

       Within his brief, Rios asserts that, “In cases involving ineffectiveness per

se in [PCRA] proceedings, 42 Pa.C.S. § 9545(b)(1)(ii) is a limited extension

of the one-year requirement under circumstances when a petitioner has not

had the review to which he was entitled due to a circumstance that was

beyond his control.” Rios’ Brief at 5. Rios then asserts that he “should be

granted the exception rule beyond the one-year limit because the facts of the

medical records were never made known to him prior” to his decision to enter

a guilty plea. Id. at 7.

       With this claim, Rios attempts to establish the PCRA’s timeliness

exception found at section 9545(b)(1)(ii).

          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 of those facts earlier by the exercise of due
          diligence. 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)
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4 When issuing its Rule 907 notice, the PCRA court correctly concluded that
Rios could not rely on our Supreme Court’s decision in Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017) to invoke the “new constitutional right”
time-bar exception pursuant to 42 Pa.C.S.A. section 9545(b)(1)(iii). See
PCRA Court Opinion, 3/26/19, at 1 n.2. Our review of the record reveals that
Rios’ first referred to the section 9545(b)(1)(ii) exception in his Rule 907
response. See Evidentiary Hearing Requested and Motion to Appear by Video
Conference, 4/8/19, at 2.


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           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.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

omitted).

        Even if Rios had raised this exception in his PCRA petition, it is clearly

without merit. Initially, we note PCRA counsel reviewed this case for Rios and

determined that he had no non-frivolous issues to appeal. Thus, his claim of

per se ineffectiveness and/or “abandonment” by PCRA counsel is refuted by

the record. See Rios’ Brief at 8-9.5 The same is true with regard to plea

counsel’s alleged failure to procure the victims’ medical records.             Indeed,

within his brief Rios concedes that he is not even aware of whether such

records exists. See Rios’ Brief at unnumbered 11. Additionally, Rios does not

discuss his due diligence. Therefore, Rios’ claim would fail because he cannot

establish what new facts he had recently discovered or when he learned of

them.

        In sum, because the PCRA court correctly concluded that Rios failed to

establish a PCRA time-bar exception, Rios’ PCRA petition is untimely.

Accordingly, neither the PCRA court nor this Court has jurisdiction to review
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5 Rios’ reliance upon our Supreme Court’s recent decision in Commonwealth
v. Peterson, 192 A.3d 1123, 1130 (Pa. 2018) is easily distinguishable,
because it involved a claim of per se ineffectiveness when counsel filed
Peterson’s first PCRA petition one day late, thereby denying the petitioner a
review of his post-conviction claims. Here, the PCRA court agreed with PCRA
counsel’s determination that Rios untimely filed his first PCRA petition.


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his underlying claims. Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super.

2015). We therefore affirm the PCRA court’s order denying relief.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/10/2020




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