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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MIGUEL ANGEL PAGAN
Appellant No. 2141 MDA 2015
Appeal from the PCRA Order November 4, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001452-2012;
CP-36-CR-0001508-2012
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
JUDGMENT ORDER BY GANTMAN, P.J.:
Appellant, Miguel Angel Pagan, appeals pro se from the order entered
in the Lancaster 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 15, 2012, Appellant entered a
negotiated guilty plea to three counts of involuntary deviate sexual
intercourse, and two counts each of statutory sexual assault, unlawful
contact with a minor, and corruption of minors, in connection with
Appellant’s unlawful contact with the 15-year-old Victim between November
25, 2011 and February 10, 2012. The court sentenced Appellant that day in
accordance with the terms of the negotiated plea agreement to an aggregate
term of 8-16 years’ imprisonment. Appellant did not pursue direct review.
On June 22, 2015, Appellant filed an untimely first PCRA petition pro se.
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The court appointed counsel, who filed a motion to withdraw and
accompanying “no-merit” letter on August 27, 2015.1 On August 31, 2015,
Appellant filed a pro se “amended” PCRA petition, which the court forwarded
to counsel.2 On October 16, 2015, the court issued appropriate notice per
Pa.R.Crim.P. 907; Appellant responded pro se on November 2, 2015. That
day, the court granted counsel’s request to withdraw and denied PCRA relief.
Appellant timely filed a pro se notice of appeal on December 2, 2015. On
December 9, 2015, the court ordered Appellant to file a concise statement of
errors per Pa.R.A.P. 1925(b); Appellant timely complied on December 28,
2015.
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. §
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1
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2
The amended PCRA petition is not in the certified record.
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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. Commonwealth v. Carr, 768 A.2d 1164
(Pa.Super. 2001).
Instantly, Appellant’s judgment of sentence became final on
September 14, 2012, 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 June 22, 2015, which is
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Nevertheless, Appellant
attempts to invoke the “new facts” exception to the PCRA time-bar at
Section 9545(b)(1)(ii). Specifically, Appellant relies on an affidavit from
Victim, stating her relationship with Appellant was consensual; and she
wanted to testify on Appellant’s behalf had the case proceeded to trial, or at
the sentencing hearing, but counsel failed to consider her as a witness.
Appellant also relies on an affidavit from Victim’s mother discussing
Appellant’s peaceful and good reputation in the community, which
purportedly bolsters Appellant’s averment that his relationship with Victim
was consensual. Assuming without deciding that Appellant met the 60-day
rule by filing his PCRA petition within 60 days of receiving these affidavits in
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late May 2015, Appellant still fails to explain why he could not have
discovered the facts alleged in the affidavits sooner with the exercise of due
diligence. See Bennett, supra; Carr, supra. Therefore, Appellant cannot
satisfy the “new facts” exception, and his petition remains untimely. See 42
Pa.C.S.A. § 9545(b)(1)(ii). Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2016
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