Com. v. Koch, B. ( 2019 )

J-S65013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARRY OLIVER KOCH :
:
Appellant : No. 644 MDA 2018
Appeal from the PCRA Order March 20, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000924-1997,
CP-41-CR-0000970-1997
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 11, 2019
Appellant, Barry Oliver Koch, appeals pro se from the order denying his
third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
In a memorandum disposing of Appellant’s first PCRA petition, this Court
summarized the procedural history of this case as follows:
On March 2, 1998, Appellant entered pleas of nolo contendere at
the above-referenced dockets for the sexual molestation of two
minors while he was babysitting. Specifically, at docket number
97-10924, he pled to indecent assault, criminal attempt indecent
exposure, and criminal attempt indecent assault, and at docket
number 97-10970, he pled to indecent assault, corruption of
minors, and endangering the welfare of children. On June 17,
1998, Appellant was originally sentenced pursuant to
Pennsylvania’s Megan’s Law (Megan’s Law I). However, on appeal
to this Court we found Megan’s Law I unconstitutional and
remanded the cases for re-sentencing. Commonwealth v.
Koch, [747 A.2d 415,] No. 1600 Harrisburg 1998 (unpublished
memorandum filed October 1, 1999).
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Following remand, on November 29, 1999, Appellant was
re-sentenced as follows. At docket number 97-10924, Appellant
received a term of imprisonment of six months to five years for
indecent assault, a consecutive three months to five years for
criminal attempt indecent assault and a consecutive three months
to five years for criminal attempt indecent exposure. At docket
number 97-10970, Appellant received a term of imprisonment of
six months to five years for indecent assault, a consecutive term
of three months to five years for endangering the welfare of
children and a consecutive term of three months to five years for
corruption of minors. This sentence was also consecutive to the
sentence imposed at docket number 97-10924. The aggregate
sentence for both cases was two years to thirty years and was
consecutive to a Clinton County sentence of four years to twenty
years, which also arose out of sexual offenses against children.
Appellant next filed a motion to modify sentence in which
he asserted the maximum [sentence] was unduly excessive,
which the trial court denied on December 14, 1999.
Subsequently, it was discovered that there was a clerical error
committed by the court reporter in the sentencing order recorded
at docket number 97-10970 with respect to the sentence for
corruption of minors. Thus, the trial court issued an amended
sentencing order to correct the mistake on December 7, 2000.
Appellant then filed a notice of appeal at docket number 97-10970
on January 24, 2001. On November 30, 2001, this Court quashed
the appeal at docket number 97-10970 as untimely filed.
Commonwealth v. Koch, 423 MDA 2001 (per curiam order filed
November 30, 2001).
Commonwealth v. Koch, 867 A.2d 647, 1556 MDA 2003 (Pa. Super. 2004)
(unpublished memorandum at 1-3).
Appellant filed his first PCRA petition on January 15, 2003, and counsel
was appointed. The PCRA court dismissed the petition on September 2, 2003.
This Court affirmed the order denying relief on November 18, 2004.
Commonwealth v. Koch, 867 A.2d 647, 1556 MDA 2003 (Pa. Super. 2004).
Appellant filed his second PCRA petition on December 7, 2016, which the PCRA
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court dismissed on May 17, 2017. Appellant filed a notice of appeal on June
28, 2017, and this Court issued a per curiam order quashing the appeal as
untimely filed. Order, 9/18/17. Appellant filed the instant PCRA petition on
January 16, 2018. On March 20, 2018, the PCRA court dismissed the petition.
This timely appeal followed.1
Appellant presents the following issues for our review:
I. Whether the Trial Court erred when it construed the plea
agreement between the parties as calling for a consecutive 2 year
minimum sentence as apposed [sic] to a consecutive 2 year
maximum sentence when the terms of the agreement were not
specific.
Appellant’s Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
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1 We observe that Appellant’s notice of appeal lists two trial court docket
numbers. On June 1, 2018, our Supreme Court decided Commonwealth v.
Walker, 185 A.3d 969, 977 (Pa. 2018). Citing the official note to Pa.R.A.P.
341, the Walker Court prospectively determined that separate notices of
appeal must be filed when convictions arise from separate dockets. However,
our Supreme Court applied Walker prospectively from June 1, 2018, because
it was “contrary to decades of case law from [the Supreme] Court and the
intermediate appellate courts that, while disapproving of the practice of failing
to file multiple appeals, [appellate courts] seldom quashed appeals as a
result.” Walker, 185 A.3d at 977. Because Walker was decided after the
instant appeal was filed, we will not apply it, and we decline to quash this
single appeal.
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record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment
of sentence “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. § 9545(b)(3). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.2 A petition invoking one of these exceptions must be filed within
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2 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
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sixty days of the date the claim could first have been presented. 42 Pa.C.S.
§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-
year filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
Our review of the record reflects that Appellant was sentenced on
November 29, 1999, and post-sentence motions were denied on December
14, 1999. Thus, Appellant’s sentence became final on January 13, 2000, when
the thirty-day period for filing a notice of appeal before this Court expired. 42
Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Therefore, Appellant had until January
12, 2001, to file a timely PCRA petition, but he did not file the instant petition
until January 16, 2018. Moreover, at least with respect to the amended
sentence at docket number 97-10970, even if we were to assume that the
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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.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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triggering sentencing date was December 7, 2000, the instant petition is still
patently untimely unless Appellant has pled and can prove that any exception
to timeliness under the PCRA applies.
Our review of the certified record reflects that Appellant did not
specifically raise the issue of timeliness and did not plead any exception to the
timeliness requirement in his filing with the PCRA court. Thus, Appellant has
not carried his burden to plead and prove applicability of one of the exceptions
to the timeliness requirement. Hence, the PCRA court did not commit any
error in dismissing Appellant’s petition as untimely.
In conclusion, the PCRA petition was untimely and no exceptions apply.
Therefore, the PCRA court lacked jurisdiction to address any claims presented.
See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)
(holding that PCRA court lacks jurisdiction to hear an untimely petition).
Likewise, we lack the authority to address the merits of any substantive claims
raised in the PCRA petition. See Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or
competency to adjudicate a controversy.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/11/2019
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