J-S11036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
              v.                           :
                                           :
THOMAS DARTOE,                             :
                                           :
                    Appellant              :           No. 1890 EDA 2014

                    Appeal from the PCRA Order June 19, 2014
              in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No(s): CP-51-CR-0006369-2007

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED FEBRUARY 19, 2016

        Thomas Dartoe (“Dartoe”) appeals from the Order dismissing his first

Petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On December 14, 2009, Dartoe, a native of Liberia, pled guilty to

aggravated assault, criminal conspiracy to engage in aggravated assault,

criminal trespass, and possession of an instrument of crime.1 On February

2, 2010, the trial court sentenced Dartoe to an aggregate prison term of

seven to twenty years.2 The trial court also informed Dartoe that he most

likely would be deported as a result of the convictions. Dartoe did not file a

post-sentence motion to withdraw his guilty plea or a notice of appeal.




1
    18 Pa.C.S.A. §§ 2702(a), 903(a)(1), 3503(a)(1)(ii), 907(a).
2
  On a separate docket, Dartoe pled guilty to other charges not relevant to
this appeal.
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      Dartoe filed the instant PCRA Petition, pro se, on January 6, 2012.

The PCRA court appointed Dartoe counsel, who filed an amended Petition.

After issuing a Pennsylvania Rule of Criminal Procedure 907 Notice of Intent

to Dismiss Without a Hearing, the PCRA court dismissed the Petition on June

19, 2014.   Dartoe filed a Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, Dartoe raises the following questions for our review:

      A. Whether the trial court erred in denying [Dartoe’s] [PCRA]
      Petition where trial counsel failed to file an appeal on his behalf?

      B. Whether the trial court erred in denying [Dartoe’s] [PCRA]
      Petition where trial counsel failed to explain the immigration
      consequences of the case on him?

      C. Whether the trial court erred in denying [Dartoe’s] [PCRA]
      Petition where [Dartoe] was from a foreign country and lacked
      the legal sophistication to pursue his claims in a timely manner?

Brief for Appellant at 5 (some capitalization omitted).

             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, a PCRA petition “shall be filed within one

year of the date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1).

A judgment of sentence becomes final “at the conclusion of direct review,



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including discretionary review in the Supreme Court of Pennsylvania, or at

the expiration of time for seeking the review.”     Id. § 9545(b)(3).     The

PCRA’s timeliness requirements are jurisdictional in nature and a court may

not address the merits of the issues raised if the PCRA petition was not

timely filed.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).

      Here, Dartoe’s judgment of sentence became final on March 4, 2010,

30 days after sentencing. Dartoe had until March 4, 2011, to file a timely

petition. Dartoe did not file the instant PCRA Petition until January 2, 2012.

Thus, Dartoe’s Petition is facially untimely under the PCRA.         See 42

Pa.C.S.A. § 9545(b).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth at

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

      Here, Dartoe invokes     the   newly recognized constitutional right

exception, codified at 42 Pa.C.S.A. § 9545(b)(1)(iii). Dartoe asserts that the

United States Supreme Court’s decision in Padilla v. Kentucky, 559 U.S.

356 (2010), which held that trial counsel was ineffective for not advising the

defendant that pleading guilty may result in deportation, recognizes a new

constitutional right that can overcome the PCRA’s time bar.     See Brief for



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Appellant at 12, 13-14. Dartoe contends that even though the changes in

Padilla were enacted after Dartoe’s guilty plea, he is entitled to its benefit.

Id. at 12.        Dartoe argues that, had he been informed of the strong

possibility of deportation, he would either have taken the matter to trial or

negotiated a different guilty plea. Id.

         Dartoe has not properly invoked the exception at 42 Pa.C.S.A.

§ 9545(b)(1)(iii).       First, Dartoe had 60 days from the date of the Padilla

decision     to   file   his   Petition.     See   42   Pa.C.S.A.   §   9545(b)(2);

Commonwealth v. Brandon, 51 A.3d 231, 235 (Pa. Super. 2012) (stating

that PCRA petitions raising an exception under 42 Pa.C.S.A. § 9545(b)(1)(iii)

must be filed within 60 days of the date of the underlying judicial decision).

Padilla was decided on March 31, 2010, and Dartoe did not file his Petition

until January 6, 2012, well beyond the 60-day statutory limit.

         Further, in order to invoke the newly recognized constitutional right

exception, the petitioner must demonstrate that the United States Supreme

Court or the Pennsylvania Supreme Court recognized a new constitutional

right.    Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014).

This Court has explicitly held that Padilla did not create a new constitutional

right. Commonwealth v. Garcia, 23 A.3d 1059, 1064 (Pa. Super. 2011).

Rather, Padilla merely clarified the scope of a criminal defendant’s

constitutional right to the effective assistance of counsel during the guilty




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plea process.   Garcia, 23 A.3d at 1064.3     Therefore, Dartoe has failed to

plead and prove the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to

overcome the untimeliness of his Petition. See id.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/19/2016




3
 Additionally, the United States Supreme Court has ruled that Padilla does
not apply retroactively. See Chaidez v. United States, 133 S. Ct. 1103,
1113 (2013).
4
  With regard to Dartoe’s claim that his trial counsel was ineffective for
failing to file an appeal or explaining the immigration consequences of the
plea, we affirm “that allegations of ineffective assistance of counsel will not
overcome the jurisdictional timeliness requirements of the PCRA.”
Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).


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