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[U] Commonwealth v. Mojica

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
LUIS ENRIQUE MOJICA Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 16, 2013 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001026-2008

BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J.

JUDGMENT ORDER

GANTMAN, P.J.

Appellant, Luis Enrique Mojica, appeals from the order entered in the Lebanon County Court of Common Pleas, which dismissed his first petition filed under the Post Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. On November 6, 2008, a jury convicted Appellant of possession of a controlled substance with the intent to deliver, corrupt organizations, and related conspiracy offenses. The court sentenced Appellant on January 28, 2009, to 12 to 24 years' imprisonment. This Court affirmed the judgment of sentence on January 27, 2010. See Commonwealth v. Mojica, 991 A.2d 360 (Pa.Super. 2010) (unpublished memorandum). Appellant did not pursue further direct review. On July 23, 2012, Appellant filed a pro se PCRA petition, and the court subsequently appointed counsel. On October 10, 2012, the court issued Pa.R.Crim.P. 907 notice; Appellant responded on October 29, 2012. The court held a hearing on July 16, 2013, after which the court dismissed Appellant's petition as untimely. Appellant timely filed a notice of appeal on August 6, 2013. The court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, and Appellant timely complied.

The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008). A PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). 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)(3). The three statutory exceptions to the PCRA's timeliness provisions allow for very limited circumstances under which the late filing of a petition will be excused. See 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness exception must file a petition within 60 days of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). This rule is strictly enforced. Commonwealth v. Vega, 754 A.2d 714 (Pa.Super. 2000). Instantly, Appellant's judgment of sentence became final on February 26, 2010, upon expiration of the time to file a petition for allowance of appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed the current petition on July 23, 2012, more than two years after his judgment of sentence became final, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant now attempts to invoke the "new facts" exception to the PCRA's time restrictions under § 9545(b)(1)(ii), claiming he did not discover appellate counsel's ineffectiveness until Appellant learned this Court had affirmed his judgment of sentence, shortly before Appellant filed his PCRA petition on July 23, 2012. Nevertheless, Appellant failed to satisfy the PCRA's 60-day rule.[1] See 42 Pa.C.S.A. § 9545(b)(2); Vega, supra. Thus, the court properly dismissed the petition.

Order affirmed.

Judgment Entered.


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