J-S44020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JOSHUA RIOS,

                        Appellant                 No. 1732 EDA 2015


                 Appeal from the PCRA Order May 14, 2015
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at Nos: MC-51-CR-0021510-2011, MC-51-CR-0032469-
                    2011, and MC-51-CR-0032470-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                   FILED NOVEMBER 17, 2016

      Joshua Rios, Appellant, appeals from the May 14, 2015 order entered

in the Court of Common Pleas of Philadelphia County (“PCRA court”),

denying as untimely his petition for collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we

affirm.

      The PCRA court summarized the history of the case as follows:

                 On March 4, 2010, [Appellant] pleaded guilty before
           the PCRA court to terroristic threats (CP-51-CR-0014319-
           2009), and simple assault and recklessly endangering
           another person (REAP) (CP-51-CR-0014318-2009).          He
           was given probation sentences.       Within this probation
           period, on May 17, 2011, [Appellant] broke into several
           vehicles with his co-conspirator, stole various items from
           within the vehicles, and also caused damage to the victims’
           vehicles; [Appellant] was arrested the next day with his
           cohort and some of the stolen items were found in
           [Appellant’s] truck.    On August 31, 2011, [Appellant]
           pleaded guilty to the theft and criminal conspiracy cases
           and was again given probation sentences—these are the
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          cases at issue in this PCRA appeal (MC-51-CR-0021510-
          2011,   MC-51-CR-0032469-2011,      MC-51-CR-0032470-
          2011).

          [Appellant] was brought before th[e PCRA] court on two
          prior occasions for violations of probation. For his first
          violation, he was given probation sentences on August 31,
          2011, for his terroristic threats, simple assault and REAP
          convictions. For his second violation on February 17,
          2012, probation was imposed on four out of five of his
          prior cases, and on one theft/conspiracy case, MC-51-CR-
          00215210-2011, he was given a 4 to 12 month prison
          sentence followed by house arrest and 60 months
          reporting probation.

                 On December 15, 2012, [Appellant] brutally
          assaulted an eighteen (18) year-old male, causing
          bleeding and severe swelling to the eyes, jaw[,] and
          forehead. Specifically, while the victim was at [a] party
          talking to a girl, [Appellant] asked the victim, “Do you
          want to get fucked up white boy?” When the victim
          turned, he was struck in the face with a vodka bottle, and
          then struck by [Appellant] in the face around four times
          while [Appellant] was wearing brass knuckles. The victim
          fell to the ground and was repeatedly stomped and kicked
          in the head, face and body by [Appellant] and a group of
          over thirty people. The victim ran through an alley to get
          away and, as he reached the end of the alley, he was
          again struck in the face with a bottle and again kicked and
          stomped. The victim’s friend put him over his shoulder,
          ran two blocks away and called police. The victim was
          taken to Hahnemann Hospital where he stayed overnight
          for his injuries.

                 On January 17, 2013, and April 5, 2013, a VOP
          hearing pursuant to Commonwealth v. Kates 305 A.2d
          701 (Pa. 1973), “Daisy Kates” hearing, was held before
          th[e PCRA] court. The above facts of [Appellant’s] direct
          violation of probation were testified to at the VOP hearing.
          After the hearing, [Appellant’s] probation was revoked. On
          May 31, 2013, he was sentenced to an aggregate term of
          4½ to 9 years incarceration, followed by five years
          probation. On June 12, 2013, [Appellant’s] [m]otion to
          [r]educe sentence and/or [c]orrect [s]entence was filed by
          attorney Joshua M. Briskin; on June 13, 2013, the
          [m]otion was denied. According to [Appellant], in the
          direct violation case, “the Commonwealth nolle prossed all
          charges against [Appellant] except simple assault and
          recklessly endangering another person[,]” he “entered a
          plea of nolo contendre to [those] charges and received no
          further penalty.”
               On September 11, 2014, [Appellant], represented by
          Kenneth L. Mirsky, Esquire, filed an untimely [p]etition

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            pursuant to the [Post Conviction Relief Act, 42 Pa.C.S. §
            9541 et seq. (PCRA), claiming that his “sentences were not
            consistent with the gravity of his violation, the need for
            public protection, or his needs for rehabilitation, he was
            “denied effective assistance of counsel,” and he was
            “denied his right to appeal.”

                On February 18, 2015, PCRA counsel filed an
            “Amended Petition for Post-Conviction Collateral Relief.”

                  The Commonwealth filed a [m]otion [t]o [d]ismiss
            the [p]etition.

                 On March 20, 2015, PCRA counsel filed “Petitioner’s
            Answer to Commonwealth’s Motion To Dismiss.”

                  On March 26, 2015, th[e PCRA] court sent
            [Appellant] a [n]otice [t]o [d]ismiss pursuant to
            Pa.R.Crim.P. 907, that his PCRA [p]etition would be
            dismissed without further proceedings on April 28, 2015,
            because his [p]etition was untimely filed and his issues are
            without merit. On May 14, 2015, by [o]rder, th[e PCRA]
            court dismissed [Appellant’s] PCRA [p]etition.

                  On June 11, 2015, [Appellant] filed a [n]otice of
            [a]ppeal to this ruling. On June 15, 2015, th[e PCRA]
            court ordered [Appellant] to file a [s]tatement [o]f [e]rrors
            [c]omplained [o]f [o]n [a]ppeal within 21 days of the date
            of the [o]rder. [Appellant] filed his [s]tatement on July 1,
            2015.

Trial Court Opinion, 7/15/15, at 1-4 (citation omitted) (footnote omitted).

      Appellant raises a sole issue on appeal.

            Whether [Appellant’s] PCRA [p]etition should not have
            been dismissed as untimely since [Appellant] plead and
            can prove that his claim comes with[in] one of the
            exceptions to the one-year time requirement: that the
            facts upon which this claim is predicated were unknown to
            the defendant and could not have been ascertained by the
            exercise of due diligence. [Appellant’s] new case, which
            was the basis for the [PCRA] court finding him in violation
            of probation, was not resolved until shortly after the one
            year expired from his sentencing on the violation of
            probation and the [Appellant] could not have known prior
            to that time that the District Attorney would not proceed
            on the felony charges against him.

Appellant’s Brief at 4.



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      The     timeliness    of   a   PCRA   petition   is   jurisdictional.      See

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011)

(citations omitted). Any PCRA petition must be filed within one year of the

date judgment becomes final, unless the petition alleges and proves one of

three timeliness exceptions.         42 Pa.C.S.A. § 9545(b)(1).        “[J]udgment

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 time for seeking the review.”              42 Pa.C.S.A. §

9545(b)(3).     The three exceptions to the one year requirement requires a

petitioner alleges and 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.

42 Pa.C.S.A. § 9545(b)(i-iii).        If one of the exceptions is invoked, the

petition shall be filed within 60 days of the date it could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

      In the matter sub judice Appellant asserts the Commonwealth’s nolle

pros of several charges (upon which his probation was revoked), more than

a year after his VOP hearing, was a fact which could not have been

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ascertained by the exercise of due diligence, and therefore his PCRA petition

was timely filed. Appellant maintains that the trial court, relying upon

Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (an in-court

ruling or published judicial opinion is law),1 erred when it viewed his plea as

the “fact” unknown to the Appellant. Appellant is mistaken. While Appellant

may have negotiated a plea with the Commonwealth, it was the court order

accepting that plea and imposing sentence that affected the disposition of

the charges against him. Since that order does not qualify as a new fact and

Appellant’s PCRA petition was filed more than one year after his sentence

became final, his petition was untimely.         See 42 Pa.C.S.A. § 9545(b);

Watts, 23 A.3d at 986-87.           The PCRA court correctly determined that it



____________________________________________


1
  In Watts, the Supreme Court explained the distinction between law and
fact as follows:

        Black’s Law Dictionary explains the distinction thusly: ‘Law
        is a principle; fact is an event. Law is conceived; fact is
        actual. Law is a rule of duty; fact is that which has been
        according to or in contravention of the rule.’ Put another
        way ‘A ‘fact,’ as distinguished from the ‘law,’ . . . [is that
        which] is to be presumed or proved to be or not to be for
        the purpose of applying or refusing to apply a rule of law.’
        Consistent with these definitions, an in-court ruling or
        published judicial opinion is law, for it is simply the
        embodiment of abstract principles applied to actual events.
        The events that prompted the analysis, which must be
        established by presumption or evidence, are regarded as
        fact.
Id. at 986-87.



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lacked jurisdiction to grant relief as the petition was untimely and failed to

satisfy any timeliness exceptions to the PCRA.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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