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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
ROCKY G. JIMENEZ,                         :         No. 1474 EDA 2019
                                          :
                         Appellant        :


              Appeal from the PCRA Order Entered April 30, 2019,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0002515-2009


BEFORE: STABILE, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED JANUARY 08, 2020

        Rocky G. Jimenez appeals pro se from the April 30, 2019 order entered

in the Court of Common Pleas of Lehigh County that dismissed his second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        The record reflects that on March 26, 2010, appellant entered a plea of

nolo contendere to third-degree murder and conspiracy to commit criminal

homicide.1     The trial court sentenced appellant to 20 to 40 years of

incarceration.    On September 2, 2011, this court affirmed appellant’s

judgment of sentence. Commonwealth v. Jimenez, No. 1424 EDA 2010,




1   18 Pa.C.S.A. §§ 2502(c) and 903(a)(2).
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unpublished memorandum (Pa.Super. filed July 22, 2011). Appellant did not

seek discretionary review with our supreme court.

      Following an unsuccessful first PCRA petition, appellant filed this pro se

PCRA petition, his second, on April 3, 2019. On April 9, 2019, the PCRA court

filed a Pa.R.Crim.P. 907 Notice of Intent to Dismiss. Appellant filed a timely

response.   On April 30, 2019, the PCRA court entered an order denying

appellant PCRA relief. Appellant filed a timely notice of appeal. The PCRA

court did not order appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On May 31, 2019, the PCRA court

entered an order that granted appellant in forma pauperis status and also

attached its April 9, 2019 Rule 907 order that set forth its reasoning for

dismissing appellant’s PCRA petition.

      Appellant raises the following issues for our review:

            1)    Did [appellant] qualify for the exception to the
                  [PCRA]    time    requirement     pursuant    to
                  42 [Pa.C.S.A. §] 9545(b)(2)(1)(ii)[?]

            2)    Did the trial court lack subject matter
                  jurisdiction to allow prosecution to a [sic]
                  defective criminal complaint that did not meet
                  [Pa.R.Crim.P.] 560 requirement[?]

            2)    Did the trial court lack jurisdiction to a
                  Rule 590(c) proceeding when [appellant]
                  maintained his innocence to the charges during
                  judges [sic] colloquy for waiver of jury trial[?]

            4)    Did the prosecutor obtain an improper
                  conviction by taking inconsistent positions at
                  the separate trial of co-defendants that violated
                  due process clause[?]


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             5)    Did    defense      counsel's    ineffectiveness,
                   incompetency arising from a conflict of interest
                   during representation created [sic] such an
                   unfair trial that constitutes as if he had no
                   attorney    as    violation   of   the     [S]ixth
                   [A]mendment[?]

Appellant’s brief at iii (full capitalization omitted).

      All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment 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 expiration of

the time for seeking the review.”             42 Pa.C.S.A. § 9545(b)(3).   The

Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.    Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, this court affirmed appellant’s judgment of sentence on July 22,

2011. Jimenez, No. 1424 EDA 2010. Appellant did not seek discretionary

review with our supreme court.          Consequently, appellant’s judgment of




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sentence became final on August 22, 2011,2 at the expiration of time for

seeking discretionary review with our supreme court.               42 Pa.C.S.A.

§ 9545(b)(3); see also Pa.R.A.P. 1113(a). Therefore, appellant’s petition,

his second, filed on April 3, 2019, is facially untimely. As a result, the PCRA

court lacked jurisdiction to review appellant’s petition, unless appellant alleged

and proved one of the statutory exceptions to the time-bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with petitioner’s ability to present the claim, when

petitioner has recently discovered facts upon which his PCRA claim is

predicated, or when either the Pennsylvania Supreme Court or the United

States Supreme Court has recognized a new constitutional right and made

that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii); Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The PCRA requires that

all petitions invoking an exception must be filed within one year of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).3 Petitioner

bears the burden of pleading and proving the applicability of any exception.




2We note that August 21, 2011, fell on a Sunday. Therefore, appellant had
until Monday, August 22, 2011, to file his petition for discretionary review with
our supreme court. See 1 Pa.C.S.A. § 1908.

3The one-year rule applies to appellant’s claim because the claim arose after
December 24, 2017. See 42 Pa.C.S.A. § 9545(b)(2); see also Act 2018-146,
§ 3.


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Id. at § 9545(b)(1). If a petitioner fails to invoke a valid exception to the

PCRA time-bar, this court may not review the petition. Id. at 9545(b)(1)(i-iii).

       Here, appellant attempts to invoke the new-facts exception to the

one-year time-bar set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). “[A]s an initial

jurisdictional threshold, Section 9545(b)(1)(ii) requires a petitioner to allege

and prove that there were facts unknown to him and that he exercised due

diligence in discovering those facts.” Commonwealth v. Brown, 111 A.3d

171, 176 (Pa.Super. 2015) (citations omitted).            Once jurisdiction is

established, the petitioner may then present a substantive new-facts claim.

Id. (citation omitted).

       In an attempt to satisfy the jurisdictional threshold, appellant alleges

that

             [on March 13, 2019, a]ppellant[’]s daughter
             ROSEAMY JIMENEZ did discover a[n April 21, 2010]
             “web-cite” [sic] newsletter of an interview by chief
             district attorney Bethany Zampogna where she spoke
             on record that her office was prosecuting with
             evidence [that appellant’s cohort’s] motive to shoot
             the victim was in a “battle between two blocks and
             [appellant’s cohort] wanted to be the big man on the
             block[.]”

Appellant’s brief at 2; see also appellant’s “response and answer to

courts [sic] intent to dismiss pursuant to Rule 907,” 4/29/19 at 1, ¶ 1.

       Appellant’s allegation that his daughter discovered this fact clearly

shows that appellant failed to allege and prove that he exercised due diligence

in discovering this fact. Therefore, appellant has failed to allege and prove an



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exception to the PCRA time-bar.4      Consequently, the PCRA court lacked

jurisdiction to review appellant’s petition, and we may not review the petition

on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 1/8/20




4 We further note that appellant admitted his guilt in the victim’s murder and
the role he played in the commission of this crime. That his cohort’s motive
may have been different from his own is irrelevant to appellant’s guilt.


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