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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
VICTOR DAVID CARRASQUILLO :
:
Appellant : No. 155 EDA 2019
Appeal from the PCRA Order Entered December 21, 2018
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0003004-2010
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED AUGUST 19, 2019
Appellant, Victor David Carrasquillo, appeals pro se from the order of
the Lehigh County Court of Common Pleas, which denied his second petition
per the Post-Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). On
April 13, 2011, a jury convicted Appellant of rape, aggravated indecent
assault, and involuntary deviate sexual intercourse. The court sentenced
Appellant on July 11, 2011, to an aggregate of 27 to 60 years’ incarceration;
the court also deemed Appellant a sexually violent predator and imposed
registration for life under Megan’s Law III. This Court affirmed on July 24,
2012. See Commonwealth v. Carrasquillo, 55 A.3d 145 (Pa.Super. 2012)
(unpublished memorandum). Appellant sought no further direct review. On
October 1, 2013, Appellant filed a counseled first PCRA petition, which the
court later denied as untimely. Appellant appealed, but then he discontinued
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* Former Justice specially assigned to the Superior Court.
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the appeal on July 14, 2014.
On November 27, 2018, Appellant pro se filed his second, current PCRA
petition, alleging ineffective assistance of first PCRA counsel. Appellant
attached to his petition a letter, dated November 13, 2013, from first PCRA
counsel, in which counsel admitted to Appellant that he had filed Appellant’s
first PCRA petition late. The PCRA court issued Rule 907 notice on December
3, 2018; Appellant responded pro se on December 17, 2018. On December
21, 2018, the PCRA court denied the petition as untimely. Appellant timely
filed a pro se notice of appeal on January 7, 2019. The PCRA court ordered
Appellant on January 9, 2019, to file a concise statement per Pa.R.A.P.
1925(b); Appellant failed to comply.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
shall be filed within one year of the date the underlying judgment of sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is 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 expiration of time for seeking the review.” 42 Pa.C.S.A. §
9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very
limited circumstances to excuse the late filing of a petition; a petitioner
asserting a timeliness exception must also file the petition within 60 days of
when the claim could first have been presented. 42 Pa.C.S.A. § 9545(b)(1-
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2).1 Generally, “[a] claim for ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 80, 753 A.2d 780, 785 (2000). But see
Commonwealth v. Peterson, ___ Pa. ___, ___, 192 A.3d 1123, 1130-31
(2018) (stating PCRA counsel’s failure to file timely first PCRA petition
constituted ineffectiveness per se that might satisfy new-facts exception to
PCRA time-bar if petitioner raises claim in new PCRA petition within timeframe,
per Section 9545(b)(2), after petitioner first learned of untimely-filed
petition).
Instantly, the judgment of sentence became final on August 23, 2012,
upon expiration of the time to file a petition for allowance of appeal in the
Pennsylvania Supreme Court. See Pa.R.A.P. 1113. Appellant filed his current
petition on November 27, 2018, which is patently untimely. See 42 Pa.C.S.A.
§ 9545(b)(1). Appellant tries to invoke the new-facts exception under Section
9545(b)(1)(ii), claiming PCRA counsel rendered ineffective assistance when
he filed the untimely first PCRA petition, citing Peterson, supra.2
Nevertheless, Appellant’s petition indicates he was aware of PCRA counsel’s
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1As of December 24, 2018, Section 9545(b)(2) now allows for one year of the
date the claim first could have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
2To the extent Appellant asserts the Peterson case itself constitutes a newly-
discovered fact, his claim fails. See Commonwealth v. Brandon, 51 A.3d
231, 235 (Pa.Super. 2012) (explaining subsequent decisional law does not
constitute new “fact” per Section 9545(b)(1)(ii)).
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ineffectiveness as of November 13, 2013, the date of counsel’s letter to
Appellant acknowledging same. Appellant, however, filed the current petition
five years later, in November 2018. Thus, Appellant failed to establish first
PCRA’s counsel’s ineffectiveness was unknown to Appellant and could not have
been learned, by the exercise of due diligence, before 2018. See
Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (stating to
satisfy new-facts exception of PCRA, petitioner must plead and prove fact was
unknown to him and could not have been discovered sooner with due
diligence). Therefore, Appellant’s current petition remains time-barred.
Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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