J-S44020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA RIOS,
Appellant No. 1732 EDA 2015
Appeal from the PCRA Order May 14, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos: MC-51-CR-0021510-2011, MC-51-CR-0032469-
2011, and MC-51-CR-0032470-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 17, 2016
Joshua Rios, Appellant, appeals from the May 14, 2015 order entered
in the Court of Common Pleas of Philadelphia County (“PCRA court”),
denying as untimely his petition for collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we
affirm.
The PCRA court summarized the history of the case as follows:
On March 4, 2010, [Appellant] pleaded guilty before
the PCRA court to terroristic threats (CP-51-CR-0014319-
2009), and simple assault and recklessly endangering
another person (REAP) (CP-51-CR-0014318-2009). He
was given probation sentences. Within this probation
period, on May 17, 2011, [Appellant] broke into several
vehicles with his co-conspirator, stole various items from
within the vehicles, and also caused damage to the victims’
vehicles; [Appellant] was arrested the next day with his
cohort and some of the stolen items were found in
[Appellant’s] truck. On August 31, 2011, [Appellant]
pleaded guilty to the theft and criminal conspiracy cases
and was again given probation sentences—these are the
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cases at issue in this PCRA appeal (MC-51-CR-0021510-
2011, MC-51-CR-0032469-2011, MC-51-CR-0032470-
2011).
[Appellant] was brought before th[e PCRA] court on two
prior occasions for violations of probation. For his first
violation, he was given probation sentences on August 31,
2011, for his terroristic threats, simple assault and REAP
convictions. For his second violation on February 17,
2012, probation was imposed on four out of five of his
prior cases, and on one theft/conspiracy case, MC-51-CR-
00215210-2011, he was given a 4 to 12 month prison
sentence followed by house arrest and 60 months
reporting probation.
On December 15, 2012, [Appellant] brutally
assaulted an eighteen (18) year-old male, causing
bleeding and severe swelling to the eyes, jaw[,] and
forehead. Specifically, while the victim was at [a] party
talking to a girl, [Appellant] asked the victim, “Do you
want to get fucked up white boy?” When the victim
turned, he was struck in the face with a vodka bottle, and
then struck by [Appellant] in the face around four times
while [Appellant] was wearing brass knuckles. The victim
fell to the ground and was repeatedly stomped and kicked
in the head, face and body by [Appellant] and a group of
over thirty people. The victim ran through an alley to get
away and, as he reached the end of the alley, he was
again struck in the face with a bottle and again kicked and
stomped. The victim’s friend put him over his shoulder,
ran two blocks away and called police. The victim was
taken to Hahnemann Hospital where he stayed overnight
for his injuries.
On January 17, 2013, and April 5, 2013, a VOP
hearing pursuant to Commonwealth v. Kates 305 A.2d
701 (Pa. 1973), “Daisy Kates” hearing, was held before
th[e PCRA] court. The above facts of [Appellant’s] direct
violation of probation were testified to at the VOP hearing.
After the hearing, [Appellant’s] probation was revoked. On
May 31, 2013, he was sentenced to an aggregate term of
4½ to 9 years incarceration, followed by five years
probation. On June 12, 2013, [Appellant’s] [m]otion to
[r]educe sentence and/or [c]orrect [s]entence was filed by
attorney Joshua M. Briskin; on June 13, 2013, the
[m]otion was denied. According to [Appellant], in the
direct violation case, “the Commonwealth nolle prossed all
charges against [Appellant] except simple assault and
recklessly endangering another person[,]” he “entered a
plea of nolo contendre to [those] charges and received no
further penalty.”
On September 11, 2014, [Appellant], represented by
Kenneth L. Mirsky, Esquire, filed an untimely [p]etition
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pursuant to the [Post Conviction Relief Act, 42 Pa.C.S. §
9541 et seq. (PCRA), claiming that his “sentences were not
consistent with the gravity of his violation, the need for
public protection, or his needs for rehabilitation, he was
“denied effective assistance of counsel,” and he was
“denied his right to appeal.”
On February 18, 2015, PCRA counsel filed an
“Amended Petition for Post-Conviction Collateral Relief.”
The Commonwealth filed a [m]otion [t]o [d]ismiss
the [p]etition.
On March 20, 2015, PCRA counsel filed “Petitioner’s
Answer to Commonwealth’s Motion To Dismiss.”
On March 26, 2015, th[e PCRA] court sent
[Appellant] a [n]otice [t]o [d]ismiss pursuant to
Pa.R.Crim.P. 907, that his PCRA [p]etition would be
dismissed without further proceedings on April 28, 2015,
because his [p]etition was untimely filed and his issues are
without merit. On May 14, 2015, by [o]rder, th[e PCRA]
court dismissed [Appellant’s] PCRA [p]etition.
On June 11, 2015, [Appellant] filed a [n]otice of
[a]ppeal to this ruling. On June 15, 2015, th[e PCRA]
court ordered [Appellant] to file a [s]tatement [o]f [e]rrors
[c]omplained [o]f [o]n [a]ppeal within 21 days of the date
of the [o]rder. [Appellant] filed his [s]tatement on July 1,
2015.
Trial Court Opinion, 7/15/15, at 1-4 (citation omitted) (footnote omitted).
Appellant raises a sole issue on appeal.
Whether [Appellant’s] PCRA [p]etition should not have
been dismissed as untimely since [Appellant] plead and
can prove that his claim comes with[in] one of the
exceptions to the one-year time requirement: that the
facts upon which this claim is predicated were unknown to
the defendant and could not have been ascertained by the
exercise of due diligence. [Appellant’s] new case, which
was the basis for the [PCRA] court finding him in violation
of probation, was not resolved until shortly after the one
year expired from his sentencing on the violation of
probation and the [Appellant] could not have known prior
to that time that the District Attorney would not proceed
on the felony charges against him.
Appellant’s Brief at 4.
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The timeliness of a PCRA petition is jurisdictional. See
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011)
(citations omitted). Any PCRA petition must be filed within one year of the
date judgment becomes final, unless the petition alleges and proves one of
three timeliness exceptions. 42 Pa.C.S.A. § 9545(b)(1). “[J]udgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the time for seeking the review.” 42 Pa.C.S.A. §
9545(b)(3). The three exceptions to the one year requirement requires a
petitioner alleges and proves that
(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.A. § 9545(b)(i-iii). If one of the exceptions is invoked, the
petition shall be filed within 60 days of the date it could have been
presented. 42 Pa.C.S.A. § 9545(b)(2).
In the matter sub judice Appellant asserts the Commonwealth’s nolle
pros of several charges (upon which his probation was revoked), more than
a year after his VOP hearing, was a fact which could not have been
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ascertained by the exercise of due diligence, and therefore his PCRA petition
was timely filed. Appellant maintains that the trial court, relying upon
Commonwealth v. Watts, 23 A.3d 980, 986-87 (Pa. 2011) (an in-court
ruling or published judicial opinion is law),1 erred when it viewed his plea as
the “fact” unknown to the Appellant. Appellant is mistaken. While Appellant
may have negotiated a plea with the Commonwealth, it was the court order
accepting that plea and imposing sentence that affected the disposition of
the charges against him. Since that order does not qualify as a new fact and
Appellant’s PCRA petition was filed more than one year after his sentence
became final, his petition was untimely. See 42 Pa.C.S.A. § 9545(b);
Watts, 23 A.3d at 986-87. The PCRA court correctly determined that it
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1
In Watts, the Supreme Court explained the distinction between law and
fact as follows:
Black’s Law Dictionary explains the distinction thusly: ‘Law
is a principle; fact is an event. Law is conceived; fact is
actual. Law is a rule of duty; fact is that which has been
according to or in contravention of the rule.’ Put another
way ‘A ‘fact,’ as distinguished from the ‘law,’ . . . [is that
which] is to be presumed or proved to be or not to be for
the purpose of applying or refusing to apply a rule of law.’
Consistent with these definitions, an in-court ruling or
published judicial opinion is law, for it is simply the
embodiment of abstract principles applied to actual events.
The events that prompted the analysis, which must be
established by presumption or evidence, are regarded as
fact.
Id. at 986-87.
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lacked jurisdiction to grant relief as the petition was untimely and failed to
satisfy any timeliness exceptions to the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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