J-S51010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                             Appellee

                      v.

JOSEPH D. HERDER

                             Appellant                     No. 3238 EDA 2015


                Appeal from the PCRA Order September 30, 2015
                  In the Court of Common Pleas of Bucks County
               Criminal Division at No(s): CP-09-CR-0001295-2010


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                             FILED JUNE 20, 2016

      Appellant, Joseph D. Herder, appeals from the order entered in the

Bucks County Court of Common Pleas, which denied his untimely first

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

§§ 9541-9546. On August 10, 2011, a jury convicted Appellant of receiving

stolen property, unauthorized use of a motor vehicle, and driving while

operating privilege is suspended or revoked.           Appellant requested counsel

for sentencing, so the court appointed counsel for sentencing and a potential

appeal. On August 25, 2011, the court sentenced Appellant to an aggregate

term of 3-7 years’ imprisonment.             Appellant did not pursue timely direct

review.   Between January and April 2012, Appellant wrote multiple pro se

letters   to   the   Clerk     of   Courts    requesting   transcripts,   stating   his

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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“understanding” that sentencing counsel was supposed to file a direct appeal

on his behalf, and expressing his intent to file a direct appeal. On April 11,

2012, the Clerk of Courts responded that sentencing counsel was still

counsel of record, and the Clerk would forward Appellant’s correspondence

to   counsel     per   Pa.R.Crim.P.      576.1   Upon   receipt   of   Appellant’s

correspondence, sentencing counsel wrote to Appellant and confirmed there

was no direct appeal pending. On December 18, 2014, Appellant filed the

current pro se document,2 which the court treated as a PCRA petition. The

court subsequently appointed PCRA counsel and held a hearing on August 7,

2015.    The parties stipulated that if called to testify, sentencing counsel

would say Appellant did not ask him to file post-sentence motions or a direct

appeal. Appellant testified at the hearing, inter alia, that sentencing counsel

wrote to him in early 2012, explaining no direct appeal had been filed.

Following receipt of this letter, Appellant said he left the appeal issue alone

(until the filing of his current PCRA petition) because he thought an attorney

should be handling the appeal. On September 30, 2015, the court denied
____________________________________________


1
  See Pa.R.Crim.P. 576(A)(4) (stating in any case in which defendant is
represented by attorney, if defendant submits for filing written motion,
notice, or document that has not been signed by defendant’s attorney, clerk
of courts shall, inter alia, forward document to defendant’s attorney and
attorney for Commonwealth within 10 days of receipt).
2
  This document is titled: Motion for Waiver or Modification of Rule 576
relating to defendants represented by counsel of record[;] Motion for New
Trial[;] Motion for Change of Appointed Counsel[;] Motion for Post-Sentence
Relief[; and] Motion for Writ of Habeas Corpus.



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PCRA relief. Appellant timely filed a notice of appeal on October 27, 2015.

The next day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement, and Appellant timely complied.

       The timeliness of a PCRA petition is a jurisdictional requisite.

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

petition must be filed within one year of the date the underlying judgment

becomes final; a judgment is deemed final at the conclusion of direct review

or at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(1),

(3).   The statutory exceptions to the timeliness provisions allow for very

limited circumstances under which the late filing of a petition will be

excused; a petitioner asserting an exception must file a petition within 60

days of the date the claim could have been presented. See 42 Pa.C.S.A. §

9545(b)(1-2). The timeliness exception at 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.   Commonwealth v. Bennett, 593 Pa. 382, 930 A.2d 1264

(2007). Due diligence demands that the petitioner take reasonable steps to

protect his own interests.    Instantly, Appellant’s judgment of sentence

became final on September 24, 2011, upon expiration of the time for filing a

notice of appeal to this Court.   See Pa.R.A.P. 903(a) (explaining notice of

appeal shall be filed within 30 days after entry of order or judgment from

which appeal is taken).      Appellant filed the current PCRA petition on


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December 18, 2014, which is patently untimely.         See 42 Pa.C.S.A. §

9545(b)(1).      Appellant attempts to invoke the “new facts” exception at

Section 9545(b)(1)(ii), claiming the court’s remarks at sentencing led him to

believe counsel would file a direct appeal on his behalf and Appellant

“recently learned” sentencing counsel failed to file a direct appeal.3

Nevertheless, Appellant’s correspondence with the Clerk of Courts and his

testimony at the PCRA hearing make clear Appellant knew in early 2012 that

sentencing counsel had not filed a direct appeal.    Thus, Appellant cannot

satisfy the 60-day rule, and his petition remains untimely. See 42 Pa.C.S.A.

§ 9545(b)(2). Accordingly, we affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




____________________________________________


3
  Appellant’s reliance on the “governmental interference” exception at
Section 9545(b)(1)(i) is waived, where Appellant did not raise that exception
before the PCRA court. See Pa.R.A.P. 302(a) (stating issues not raised in
PCRA court are waived and cannot be raised for first time on appeal).



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