J-S32041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

NOEL ROSADO

                           Appellant                  No. 2074 EDA 2016


                   Appeal from the PCRA Order June 10, 2016
     in the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0002899-2001

BEFORE: GANTMAN, P.J., STABILE, and FITZGERALD* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 26, 2017

        Appellant, Noel Rosado, appeals from the order dismissing his seventh

Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims

he is entitled to relief based on newly discovered evidence that his trial

counsel coerced him into pleading guilty fifteen years ago. We affirm.

        On May 7, 2002, Appellant entered a guilty plea to one count of rape 2

in return for withdrawal of nine remaining counts pending against him. All

ten charges related to Appellant’s rape of his girlfriend’s mother, who was

intellectually disabled and who let Appellant in her home when he had

nowhere else to stay.       On September 9, 2002, the trial court sentenced



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3121(a)(1).
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Appellant to six to eighteen years’ imprisonment.       Appellant did not file a

direct appeal, so his judgment of sentence became final on October 9, 2002.

      Between 2003 and 2016, Appellant filed six PCRA petitions, all of

which were denied.        On April 20, 2016, Appellant, acting pro se, filed his

seventh PCRA petition, the subject of the present appeal, alleging that he is

entitled to withdraw his guilty plea because his attorney threatened to

withdraw his appearance unless Appellant pleaded guilty. On May 9, 2016,

the PCRA court issued notice of its intent under Pa.R.Crim.P. 907 to dismiss

the petition without a hearing. On June 3, 2016, Appellant filed a response

in opposition to the Rule 907 notice. On June 10, 2016, the court denied

Appellant’s petition.     Appellant timely appealed from this order, and the

court issued a Pa.R.A.P. 1925(a) opinion without ordering Appellant to file a

Pa.R.A.P. 1925(b) statement.

      In this appeal, Appellant raises one issue:

         Did the lower court properly deny Appellant’s [PCRA]
         petition as untimely?

Appellant’s Brief at 4.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”        Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has explained:




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          the PCRA timeliness requirements are jurisdictional in
          nature and, accordingly, a PCRA court is precluded from
          considering untimely PCRA petitions. We have also held
          that even where the PCRA court does not address the
          applicability of the PCRA timing mandate, th[e] Court will
          consider the issue sua sponte, as it is a threshold question
          implicating our subject matter jurisdiction and ability to
          grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

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

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies . . . .”   Commonwealth v. Copenhefer, 941 A.2d 646, 648

(Pa. 2007) (citations and footnote omitted).      The three exceptions to the

general one-year time limitation 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)-(iii). Not only must the petitioner satisfy one of

these exceptions, but he must file his petition “within sixty days of the date

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


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      Appellant’s April 20, 2016 PCRA petition was untimely on its face,

because Appellant filed it more than thirteen years after his judgment of

sentence became final. Appellant appears to argue that his claim is timely

based on the unknown facts exception within section 9545(b)(1)(ii). This

exception requires proof that “(1) the facts upon which the claim was

predicated were unknown and 2) could not have been ascertained by the

exercise of due diligence.”   Commonwealth v. Bennett, 930 A.2d 1264,

1272 (Pa. 2007) (citation, emphasis and quotation marks               omitted).

Appellant cannot fulfill these requirements.       The new fact upon which

Appellant relies is that, while recently reviewing his written guilty plea

colloquy, he allegedly discovered evidence that counsel coerced him to enter

into his guilty plea by threatening to withdraw his appearance if the case

went to trial. Appellant’s Brief at 7. This is not an unknown fact, 3 because

Appellant filled out his guilty plea colloquy form nearly fifteen years ago and

knew at that time what he stated on this form.         Further, he could have

obtained information from this form years ago through due diligence,

because it has been part of the certified record since his guilty plea in 2002.

      For these reasons, the PCRA court correctly denied Appellant’s seventh

PCRA petition as untimely.


3
 Appellant has moved for leave to amend his brief in an attempt to explain
how this was an unknown fact. We grant Appellant’s motion to amend, but
we find nothing in the amended text that demonstrates that this fact was
unknown or that Appellant used due diligence in obtaining it.



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     Order affirmed. Appellant’s motion to amend brief granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/26/2017




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