J-S22003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALLEN VIDMOSKO                             :
                                               :
                       Appellant               :   No. 1119 MDA 2018

              Appeal from the PCRA Order Entered June 14, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0002279-2009


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 30, 2019

        Appellant, Allen Vidmosko, appeals pro se from the order denying his

third petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        The PCRA court summarized the procedural history of this case as

follows:

              On December 21, 2009, [Appellant] pled guilty to one count
        of rape by forcible compulsion.[1] In exchange, the other charges
        pending against him were nolle prossed. The charges arose
        between September 1, 2008 and September 30, 2008 when
        [Appellant] engaged in sexual intercourse with a 13 year old
        victim. On April 6, 2010, he was sentenced to 10 to 20 years. He
        was represented by Bernard Brown, Esq.



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1   18 Pa.C.S. § 3121(a)(1).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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              On April 12, 2010, [Appellant] filed a Motion for
       Reconsideration of Sentence which this court denied [on April 13,
       2010].[2] On February 2, 2012, [Appellant] filed a Petition for Writ
       of Habeas Corpus and to Withdraw Guilty Plea which this court
       deemed a Petition for Post Conviction Collateral Relief. Kurt
       Lynott, Esq. was appointed to represent [Appellant]. On March 8,
       2012, the Commonwealth filed an answer and motion to dismiss.
       On March 4, 2013, [Appellant] filed a Motion to Withdraw as
       Counsel Pursuant to a Turner-Finley[3] Letter which was granted
       by this court. On June 4, 2013, this court issued a Notice of Intent
       to Dismiss the petition, and on July 30, 2013, dismissed the
       petition. On August 12, 2013, [Appellant] filed a Notice of Appeal
       to the Superior Court. On May 14, 2014, the Superior Court
       affirmed. [Appellant] filed a Petition for Allowance of Appeal to
       the Pennsylvania Supreme Court, which was denied on October
       21, 2014.

              On July 21, 2015, [Appellant] filed a second PCRA petition.
       On October 22, 2015, this court issued a Notice of Intent to
       Dismiss the petition, and on December 1, 2015, dismissed the
       petition. On December 18, 2015, [Appellant] filed a Notice of
       Appeal to the Superior Court. On July 18, 2016, the Superior
       Court affirmed.

              On February 28, 2018, [Appellant] filed a third PCRA
       petition. On April 19, 2018, this court issued a Notice of Intent to
       Dismiss the petition. On May 16, 2018, [Appellant] filed an
       Objection to the Notice of Intent to Dismiss. On June 14, 2018,
       this court dismissed the petition. On July 6, 2018, [Appellant]
       filed a Notice of Appeal to the Superior Court, and this court
       ordered [Appellant] to file a concise statement of the matters
       complained of on appeal. [Appellant] has not yet filed a concise
       statement.




____________________________________________


2The PCRA court opinion states that the motion for reconsideration was denied
on April 12, 2010, the same date it was filed. The docket, however, reflects
that the motion for reconsideration was denied on April 13, 2010.

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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PCRA Court Opinion, 8/30/18, at 1-2.        The PCRA court filed its Pa.R.A.P.

1925(a) opinion on August 30, 2018.

      Appellant presents the following issue for our review: “Did the P.C.R.A.

Court err in denying the Post Conviction Relief Act Petition without a hearing

by declaring the Post Conviction Relief Act Petition facially untimely when

[Appellant] filed the instant Petition timely within the allotted sixty (60) days

of discovering the school records?” Appellant’s Brief at 4. Our standard of

review of an order denying PCRA relief is whether the record supports the

PCRA court’s determination and whether the PCRA court’s determination is

free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.

2011).   The PCRA court’s findings will not be disturbed unless there is no

support for the findings in the certified record. Id.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final.      42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence

“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 time for seeking the review.” 42 Pa.C.S.

§ 9545(b)(3).




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       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.4 A petition invoking one of these exceptions must be filed within

one year of the date the claim could first have been presented. 5 42 Pa.C.S.

§ 9545(b)(2).

       Our review of the record reflects that Appellant was sentenced on April

6, 2010. As stated, Appellant filed a timely motion for reconsideration on April

____________________________________________


4   The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).
5 Until recently, a petition invoking an exception was required to be filed within
sixty days of the date the claim could have been presented. However, Act
146 of 2018 amended 42 Pa.C.S. § 9545(b)(2), and Section 9545(b)(2) now
provides that a PCRA petition invoking a timeliness exception must be filed
within one year of the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146 (S.B. 915), effective December 24, 2018, § 2 and
§ 3 (“[T]he amendment ... shall apply to claims arising on Dec. 24, 2017 or
thereafter.”). Although applicable to Appellant’s instant petition, the change
in the law from sixty days to one year does not impact our analysis.

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12, 2010, which motion was denied on April 13, 2010. Appellant did not file

a direct appeal.

      Accordingly, Appellant’s judgment of sentence became final on May 13,

2010, when the time for seeking a direct appeal with this Court expired. See

42 Pa.C.S. § 9545(b)(3) (providing that “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 time for seeking the review.”); Pa.R.A.P. 903(a) (providing that

“notice of appeal ... shall be filed within 30 days after the entry of the order

from which the appeal is taken”). Therefore, Appellant had to file the current

PCRA petition by May 13, 2011, in order for it to be timely. See 42 Pa.C.S.

§ 9545(b)(1) (a PCRA petition must be filed within one year of the date that

the judgment of sentence becomes final). Appellant did not file the instant

PCRA petition until February 28, 2018. Thus, the petition is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA petition,

his petition nevertheless may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.              42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within one year of the date the exception could be asserted.         42

Pa.C.S. § 9545(b)(2). It is the petitioner’s burden “to allege and prove that

one of the timeliness exceptions applies.” Commonwealth v. Whitehawk,

146 A.3d 266, 269–270 (Pa. Super. 2016).


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      Appellant   argues   that     records   from   the   Philadelphia   Education

Department reflect “his level of education as well as his inability to properly

litigate based upon mental handicap.”         Appellant’s Brief at 10.    Appellant

maintains that “[w]ithout the proof of these documents provided by the

Education department, [Appellant] would not be able to present documental

proof of said illiteracy and mental deficiency.” Id. at 11. Appellant posits that

he “has clearly found evidence that places him well within the realm of newly

discovered evidence.” Id. at 11. Thus, it appears Appellant is arguing that

the newly discovered facts exception to the time-bar applies in this case.

      “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 those facts earlier by the exercise of due

diligence.” Commnowealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

      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) 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.”

Id. (internal citations omitted).

      Appellant has failed to explain why he could not have learned of these

alleged new facts earlier with the exercise of due diligence. Indeed, as stated

by Appellant, these documents were school records. Appellant’s Brief at 12.

Thus, this evidence was available to Appellant from the time he was in the

Philadelphia Education system. As a result, Appellant has failed to establish

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that he could not have learned of this information earlier by the exercise of

due diligence.     Moreover, despite asserting that he filed his petition within

sixty days of discovering this evidence, id. at 8, Appellant has failed to plead

any facts regarding when he discovered this information.           Accordingly,

Appellant has failed to establish the application of the newly discovered facts

exception to the PCRA time-bar in this case.        Consequently, because the

instant PCRA petition was untimely and no exceptions apply, the PCRA court

lacked jurisdiction to address the claims presented and grant relief.      See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition).6

       Order affirmed.




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6 We also note that Appellant failed to file his court-ordered Pa.R.A.P. 1925(b)
statement. Accordingly, if Appellant’s PCRA petition had been timely filed and
the PCRA court had jurisdiction to entertain it, Appellant’s claim would be
waived for his failure to file a Pa.R.A.P. 1925(b) statement.               See
Commonwealth v. Hill, 16 A.3d 484, 491 (Pa. 2011) (“From this date
forward, in order to preserve their claims for appellate review, [a]ppellants
must comply whenever the trial court orders them to file a Statement of
Matters Complained of on Appeal pursuant to Rule 1925. Any issues not
raised in a 1925(b) statement will be deemed waived.”) (quoting
Commonwealth v. Lord, 719 A.2d 484, 491 (Pa. 2011)) (emphasis in
original)).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2019




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