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Commonwealth v. Ocasio

Superior Court of Pennsylvania

March 6, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
GABRIEL G. OCASIO Appellant

NON-PRESIDENTIAL DECISION

Appeal from the PCRA Order of March 22, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0514001-2000

BEFORE: ALLEN, STABILE, AND STRASSBURGER, [*] JJ.

MEMORANDUM

STABILE, J.

Appellant, Gabriel G. Ocasio, pro se appeals from the March 22, 2013 order of the Court of Common Pleas of Philadelphia County dismissing his petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

We assume the parties' familiarity with the facts and the procedural history of the case. Briefly, a jury convicted Ocasio of first degree murder, three counts of attempted murder, aggravated assault, possessing instruments of crime, and carrying firearms without a license. This Court affirmed the judgment of sentence on January 30, 2007, and the Supreme Court of Pennsylvania denied his petition for allowance of appeal on July 10, 2007.

Subsequently, Ocasio filed a timely PCRA petition claiming he was entitled to relief because of the ineffective assistance of trial and appeal counsel. After being amended and supplemented, the petition was dismissed without a hearing on September 11, 2009. Ocasio did not appeal the ruling.

On March 12, 2012, Ocasio filed a second petition claiming he was entitled to relief because of ineffective assistance of counsel, improper obstruction by government officials of his right to appeal, newly discovered exculpatory evidence, and because of the imposition of a sentence greater than the lawful maximum. On August 17, 2012, Ocasio filed a supplemental PCRA petition claiming the recent United States Supreme Court holding in Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012) ("mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments'") entitled him to relief.[1] On February 7, 2013, the PCRA court filed its Pa.R.Crim.P. 907 notice of intent to dismiss Ocasio's petition as untimely. Appellant filed a response on March 7, 2013. On March 22, 2013, the PCRA court dismissed Appellant's petition as untimely. This appeal followed.

The PCRA contains the following restrictions governing the timeliness of any PCRA petition.

(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner 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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
(3) For purposes of this subchapter, a judgment 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 expiration of time for seeking the review.

42 Pa.C.S.A. § 9545(b). The PCRA's timeliness requirements are jurisdictional. Commonwealth v. Watts, 611 Pa. 80, 84-85, 23 A.3d 980, 983 (2011). Pennsylvania courts lack jurisdiction to entertain an untimely petition.[2] Id.

Here, the record reflects the judgment of sentence became final on October 9, 2007, i.e., 90 days after the expiration of the time for seeking discretionary review in the United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13; see also Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2 (Pa.Super. 2010). Because Ocasio had one year from October 9, 2007 to file his PCRA petition, the current filing is untimely on its face given it was filed on March 12, 2012.

The one-year time limitation can be overcome if a petitioner alleges and proves one of the exceptions set forth in section 9545(b)(1)(i)-(iii). Ocasio, however, failed to allege he met any of the exceptions. See also Trial Court Opinion, 8/20/13, at 1. Therefore, the petition is untimely and he is not entitled to any further review of his claims. See, e.g., Commonwealth v. Pursell, 561 Pa. 214, 219, 749 A.2d 911, 914 (1999). Thus, the PCRA court did not err in dismissing Appellant's petition as untimely.

Order affirmed.


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