J-S45026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

PEDRO VIROLA

                            Appellant                    No. 1881 EDA 2013


                   Appeal from the PCRA Order of June 7, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0009220-2007


BEFORE: BOWES, J., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                               FILED AUGUST 06, 2014



petition for relief pursuant to the Post

Pa.C.S.A. §§ 9541-46. We affirm.

       The PCRA Court provided the following summary of the factual and

procedural history of this case:

       On numerous occasions between September 1, 2005, and
       December 1, 2006, [Virola] sexually assaulted [J.O.], a 13-year-
       old girl at her . . . home in Philadelphia. [Virola], who lived with
       the victim and her mother, repeatedly and vaginally raped the

       finger into her vagina.         [Virola] eventually moved out of the

       told her mother what had happened. The mother subsequently
       contacted the police.

____________________________________________


*
       Former Justice specially assigned to the Superior Court.
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testimony omitted).

      On January 28, 2008, [Virola] entered a negotiated nolo
      contendere plea . . . to charges of Rape Forcible Compulsion,
      [18 Pa.C.S.A. § 3121;] Aggravated Indecent Assault Without
      Consent, [18 Pa.C.S.A. § 3125;] Endangering the Welfare of
      Children (EWOC), [18 Pa.C.S.A. § 4304; Involuntary Deviate
      Sexual Intercourse (IDSI), 18 Pa.C.S.A. § 3123;] and Corruption
      of Minors (COM) [18 Pa.C.S.A § 6301. The trial court] sentenced
      [Virola] to seven-and-a-half (7.5) to twenty (20) years
      incarceration followed by ten (10) years        probation.   On
      December 8, 2008, [the trial court] vacated the previous
      sentence and re-sentenced [Virola] to seven and a half (7.5) to
      twenty-five (25) years     incarceration followed by ten (10)
      years    probation.

      On October 21, 2011, [Virola] filed a [PCRA] Petition. On
      September 14, 2012, an amended PCRA Petition was filed. On
      April 11, 2013, [the PCRA court] filed a [Pa.R.Crim.P.] 907 Letter
      of Intent to Dismiss the PCRA Petition because it was untimely.
      [Virola] had not invoked an exception to the PCRA timeliness
      provisions. On June 7, 2013, [the PCRA court] formally denied
      the PCRA petition. On June 21, 2013, [Virola] filed a Notice of
      Appeal along with a Statement of [Errors Complained of on
      Appeal] . . . .

P.C.O. at 1-2 (footnotes omitted).

                                                                           en it



Brief at 3.



The PCRA time limits are jurisdictional, and must be strictly construed,

regardless of the potential merit of the claims asserted. Commonwealth v.




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Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011). A court lacks jurisdiction

to reach the merits of a PCRA petition if it is untimely. Id.

      Despite facial untimeliness, a PCRA petition will be considered timely if

the petitioner pleads and proves one of the three exceptions to the one-year

time limit enumerated in subsection 9545(b) of the PCRA, which provides:

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner 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.

      (2) Any petition invoking an exception provided in
      paragraph (1) shall be filed within 60 days of the date the claim
      could have been presented.

42 Pa.C.S.A. § 9545(b).    When an appellant files a facially untimely PCRA

petition, and fails to plead and prove one or more of the exceptions to the

        one-year jurisdictional time limit, the petition is untimely and we

must deny the appellant relief. Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 783 (Pa. 2000). Even when one of the exceptions may apply to a



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given petition, it will excuse the untimeliness only if the petition was filed

within sixty days of the date that the conditions underlying the exception

came to light. Id. at 784.



2008. Virola did not file a direct appeal. Thus, his judgment of sentence

became final thirty days later, when his time in which to file the appeal

elapsed. Pursuant to subsection 9545(b), the time within which Virola could

file a timely PCRA petition ended on or about January 8, 2010. As his PCRA

petition was not filed until October 21, 2011, it was facially untimely.

Further, in his PCRA petition, Virola did not allege specifically that any of the

three exceptions to the one-year time limit applied.

      Instead, in his amended PCRA petition, Virola alleged that he was

abandoned by his counsel because his counsel did not file a direct appeal.

When counsel has abandoned a petitioner, our Supreme Court has

determined that such abandonment may be sufficient to invoke section

9545(b)(1)(ii), the newly discovered facts exception.      Commonwealth v.

Bennett, 930 A.2d 1264, 1274 (Pa. 2007).

      In Bennett, the petitioner filed a PCRA petition and an amended PCRA

petition, both of which were denied. Appointed counsel did not file a notice

of appeal, but the petitioner filed a pro se notice of appeal and a Rule

1925(b) statement.      New counsel was appointed, but the appeal was

dismissed by this Court when counsel did not file a brief.         Id. at 1266.

Approximately three months after the dismissal, the petitioner filed a second

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pro se PCRA petition. Id. at 1267. The Supreme Court determined that the

petitioner had alleged sufficient facts to demonstrate that he was abandoned

by counsel and to invoke the section 9545(b)(1)(ii) exception. Id. at 1274.

The Court also determined that the petitioner did not know that his appeal

had been dismissed because the notice had been sent to appointed counsel

and that the petitioner acted with due diligence in filing his second PCRA

petition upon learning of the dismissal. Id. at 1275. Interpreting Bennett,

we have held that an appellant must also plead that the PCRA petition was

filed within sixty days of learning of the abandonment. Commowealth v.

Geer, 936 A.2d 1075, 1078 (Pa. Super. 2007).

       Here, Virola alleged that he asked his counsel to file a direct appeal.

Virola also did not allege or plead that he wrote to his counsel or to the

courts to check the status of his appeal, or that he in any way followed up

on that request. Unlike in Bennett, Virola did not file a pro se appeal or a

Rule 1925(b) statement to demonstrate his intent to appeal. Virola did not

plead that he was unaware that an appeal had not been filed or that he did

anything in the approximately three years between his judgment of sentence

and PCRA petition that would demonstrate the exercise of due diligence.

Moreover, Virola did not plead that that he filed his PCRA petition within

sixty days of learning no notice of appeal was filed, as is required by Geer.

The docket shows no action by Virola and he does not allege that he took

any.   Thus, Virola has not demonstrated that he acted with the necessary

due diligence. Virola has not plead sufficiently that section 9545(b)(1)(ii) or

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                                applies. Because no exception

appli

to consider it.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/6/2014




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