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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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