J-S27011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JOEL DONALD CARL                           :
                                               :
                      Appellant                :       No. 1551 EDA 2016


                    Appeal from the PCRA Order May 2, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004381-2002


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

JUDGMENT ORDER BY GANTMAN, P.J.:                           FILED MAY 23, 2017

        Appellant, Joel Donald Carl, appeals from the order entered in the

Lehigh County Court of Common Pleas, which dismissed as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On February 5, 2004, a jury convicted Appellant of

first-degree murder and possessing instruments of crime (“PIC”), in

connection with the murder of his wife on November 13, 2002.1 The court


____________________________________________


1
   Appellant attempted suicide after the murder. While hospitalized for
treatment, Appellant waived his Miranda rights and gave a statement to
police, on the night of the murder, confessing his crimes.    Appellant
subsequently litigated an unsuccessful motion to suppress claiming his
Miranda-waiver and confession were involuntary due to medications he
received in the hospital.

____________________________________________


*Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant on March 15, 2004, to life imprisonment for murder,

and 2½-5 years’ imprisonment for PIC. This Court affirmed the judgment of

sentence on November 16, 2005, and our Supreme Court denied allowance

of appeal on June 12, 2006. See Commonwealth v. Carl, 890 A.2d 1094

(Pa.Super. 2005), appeal denied, 588 Pa. 743, 902 A.2d 969 (2006). Since

then, Appellant litigated two prior PCRA petitions, both of which were

ultimately unsuccessful.

     Appellant filed the current, serial PCRA petition on October 17, 2014.

The court held a PCRA hearing on November 4, 2015, and denied relief on

May 2, 2016. Appellant timely filed a notice of appeal on May 20, 2016. On

May 25, 2016, the court ordered Appellant to file a concise statement of

errors per Pa.R.A.P. 1925(b); Appellant timely complied.

     Preliminarily, 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 to excuse the late filing of a petition; 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 exception at Section 9545(b)(1)(ii) requires the petitioner to show


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he did not know the facts underlying his petition and could not have learned

them earlier by the exercise of due diligence. Commonwealth v. Bennett,

593 Pa. 382, 930 A.2d 1264 (2007). Due diligence requires the petitioner to

take reasonable steps to protect his own interests.      Commonwealth v.

Carr, 768 A.2d 1164 (Pa.Super. 2001). 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.   Commonwealth v. Monaco, 996

A.2d 1076 (Pa.Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d 1210

(2011).     Instantly, Appellant’s judgment of sentence became final on

September 10, 2006, upon expiration of the time for filing a petition for writ

of certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant

filed the current PCRA petition on October 17, 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 that on August 24,

2014, he first learned suppression counsel had visited Appellant in the

hospital on the morning after he confessed his crimes.     Appellant insisted

suppression counsel observed Appellant’s impaired cognitive state at that

time.     Appellant claims he would have called suppression counsel as a

witness at the suppression hearing, to address Appellant’s “groggy” state,

and hired new counsel, if Appellant had known about counsel’s observations.

Nevertheless, Appellant’s hospital records contain a notation from November

14, 2002, stating: “PA lawyer @ bedside.” The certified record makes clear


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Appellant has had access to his hospital records for many years. Appellant

failed to exercise due diligence in discovering that suppression counsel was

the “PA lawyer” who visited Appellant in the hospital on the morning after

his confession.   See Monaco, supra.      Thus, Appellant’s petition remains

untimely. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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