Com. v. Andrews, J. ( 2014 )

J-S58029-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES L. ANDREWS,
Appellant No. 337 WDA 2014
Appeal from the PCRA Order Entered January 27, 2014
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0001120-2006
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 23, 2014
27, 2014 order denying as untimely his petition for relief filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In March of 2007, Appellant was convicted by a jury of aggravated
indecent assault, indecent assault, and simple assault. He was sentenced on
July 25, 2007, to an aggregate term of five to ten y
Appellant filed a direct appeal, but that appeal was ultimately discontinued
On July 18, 2008, Appellant filed a pro se PCRA petition seeking, inter
alia, the restoration of his direct appeal rights nunc pro tunc. The court
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S58029-14
granted that request and Appellant filed a nunc pro tunc direct appeal. After
petition for allowance of appeal on February 8, 2011. Commonwealth v.
Andrews, 6 A.3d 566 (Pa. Super. 2010) (unpublished memorandum),
appeal denied
of sentence became final on May 9, 2011. See 42 Pa.C.S. § 9545(b)(3)
(stating that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review);
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing
days after our Supreme Court rejects his or her petition for allowance of
appeal since petitioner had ninety additional days to seek review with the
United States Supreme Court).
On August 1, 2013, Appellant filed a pro se PCRA petition and counsel
was appointed. Counsel filed an ame
the court conducted an evidentiary hearing. On January 27, 2014, the PCRA
filed a timely notice of appeal, as well as a timely concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein,
Appellant raises two questions for our review:
(a) [Did] [t]he exception(s) of 42 Pa.C.S. § 9545(b)(1)(ii)/(b)(2)
apply to fulfill the timeliness requirements of the PCRA statute
pro se PCRA petition[?]
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(b) [Did] [p]rior PCRA counsel fail[] to pursue and/or preserve
previously raised issue(s) involving ineffectiveness of the
Lawrence County PA Public Defender Office as set forth in the
Amended [first] PCRA petition (i.e., failure to call character
witness(es) to testify on behalf of the defense at trial) thereby
constituting ineffectiveness since [Appellant] was previously
unaware (until being informed by present counsel in connection
with filing of the Amended [second] PCRA [p]etition) that these
issue(s) were not fully pursued in prior PCRA proceeding(s)[?]
order denying a petition under the PCRA is whether the determination of the
PCRA court is supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
the PCRA time limitations implicate our jurisdiction and may not be altered
or disregarded in order to address the merits of a petition. Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded to address
the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291,
1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to
reach merits of an appeal from an untimely PCRA petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
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final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545 applies.
That section states, in relevant part:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
days of the date the claim could
and thus, he had until May 9, 2012, to file a timely petition. Consequently,
his August 1, 2013 petition is facially untimely and, for this Court to have
jurisdiction to review the merits thereof, Appellant must prove that his
petition meets one of the exceptions to the timeliness requirements set forth
ch are related, he
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contends that his petition satisfies the after-discovered fact exception of
section 9545(b)(1)(ii). Specifically, Appellant claims that his current
represented Appellant in the disposition of his July 18, 2008 PCRA petition)
that he believed his prior PCRA counsel pursued this claim, and it was not
until his present attorney was appointed that he discovered that prior
counsel had not done so.
because it is meritless on its face. Our Supreme Court has expressly stated
-discovered evidence exception
merely by alleging that possible ineffective assistance of counsel claims were
unknown to the petitioner and could not have been discovered until after
Commonwealth v. Abu-
Jamal, 833 A.2d 719, 725-726 (Pa. 2003) (quoting Commonwealth v.
Howard, 788 A.2d 351, 355 (Pa. 2002)); see also Commonwealth v.
Gamboa-Taylor
the benefit of the exception for after-discovered evidence. In sum, a
conclusion that previous counsel was ineffective is not the type of after-
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Based on this precedent, which Appellant makes no attempt to
distinguish, it is clear that App
exception set forth in section 9545(b)(1)(ii). Accordingly, the PCRA court
did not err in denying his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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