Com. v. Burch, J. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOSEPH W. BURCH
Appellant No. 1351 WDA 2018
Appeal from the PCRA Order entered September 4, 2018
In the Court of Common Pleas of Crawford County
Criminal Division at No: CP-20-CR-0000570-2008
BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 27, 2019
Appellant, Joseph W. Burch, pro se appeals from the September 4, 2018
order of the Court of Common Pleas of Crawford County, dismissing as
untimely his petition for collateral relief under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The factual and procedural backgrounds of the instant appeal are
undisputed. Briefly, on November 3, 2008, Appellant pled guilty to aggravated
indecent assault of a child. On January 5, 2009, Appellant pled guilty to
prohibited offensive weapons, and possession of drug paraphernalia. On
February 26, 2009, the trial court sentenced Appellant to 120 to 240 months’
imprisonment for the aggravated indecent child assault conviction and 14 to
60 months’ imprisonment for the prohibited offensive weapons and
paraphernalia convictions. Appellant did not file a direct appeal.
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Appellant filed his first PCRA petition on October 18, 2010. As explained
below, the PCRA court denied relief upon finding the petition untimely. We
affirmed that ruling on March 8, 2013, and the Supreme Court denied
Appellant’s petition for allowance of appeal on August 15, 2013. Appellant
filed his second petition on September 18, 2013. The PCRA court dismissed
it as untimely on October 28, 2013. No appeal was taken. Appellant filed his
third petition on August 5, 2014. The PCRA court dismissed it as untimely on
September 16, 2014. We affirmed the dismissal on November 6, 2015. No
further appeal was taken. Appellant filed his fourth PCRA petition on August
28, 2017. The PCRA court denied relief. We affirmed on June 15, 2018. The
instant PCRA petition, Appellant’s fifth, was filed on July 23, 2018. The PCRA
court denied relief on September 4, 2018. This appeal followed.
In his fifth PCRA petition, Appellant argues that the timeliness of the
petition is met under Section 9545(b)(1)(i), (ii), and (iii). See PCRA Court
Opinion, 8/10/18, at 5-6. Specifically, Appellant argues that the petition is
timely under the governmental interference exception (in the form of his
counsel’s unjustified failure to file a requested appeal), the newly-discovered
facts exception (in the form of recent discovery of the Muniz1 decision, which,
in Appellant’s view, rendered his sentence illegal), and (iii) the newly
recognized constitutional rights exception (as established in Commonwealth
v. Rivera-Figueroa, 174 A3d 674, 678 (Pa. Super. 2017)).
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1 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).
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On appeal, however, Appellant abandons those three grounds, and
instead argues the instant petition is timely under the newly-discovered fact
exception, namely the same “newly-discovered” fact described in his first
PCRA petition,2 that PCRA counsel was ineffective for not arguing the
exception, and that our decision on the first PCRA petition was incorrect
because we misunderstood the facts supporting the alleged exception.
Appellant’s Brief at 7-13. We disagree.
All PCRA petitions, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.
§ 9545(b)(1). The one-year time limitation, however, can be overcome if a
petitioner (1) alleges and proves one of the three exceptions set forth in
Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this
exception within one year of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2).3
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2 In his first PCRA petition, Appellant argued that his petition was timely under
the newly-discovered fact exception (i.e., discovery of credibility of issues
involving the forensic nurse who questioned the victim), and that PCRA
counsel was ineffective for not pursuing the matter. The PCRA court disagreed
and dismissed Appellant’s first PCRA petition as untimely. PCRA Court Order,
7/5/12. On appeal, we agreed with the PCRA’s court assessment. See
Commonwealth v. Burch, 1198 WDA 2012, unpublished memorandum (Pa.
Super. filed March 8, 2013). Appellant’s petition for allowance of appeal was
denied on August 15, 2013.
3Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2017.
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“The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a
PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims.” Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal
citations and quotation marks omitted). As timeliness is separate and distinct
from the merits of Appellant’s underlying claims, we first determine whether
this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady4 claim separate from
consideration of its timeliness). The timeliness requirements of the PCRA
petition must be met, even if the underlying claim is a challenge to the legality
of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.
2007) (“Although legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999)).
The instant petition is facially untimely and Appellant has failed to
establish the applicability of any exception to the time-bar. To the extent
Appellant relies on the same newly-discovered fact he relied upon in
connection with his first PCRA petition, we conclude that he is entitled to no
relief as the matter has been already litigated. See 42 Pa.C.S.A. § 9544(a).
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4 Brady v. Maryland, 373 U.S. 83 (1963).
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To the extent that Appellant laments counsel’s ineffectiveness for the outcome
of the first PCRA petition, we conclude that discovery of counsel’s
ineffectiveness does not save an otherwise untimely PCRA petition. See, e.g.,
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 2000);
Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (claims of counsel’s
ineffectiveness do not escape the PCRA’s one-year time limitation merely
because they are presented in term of current’s counsel discovery of the fact);
Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (couching argument in
terms of ineffectiveness cannot save a petition that does not fall into exception
to time-bar).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/2019
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