Com. v. Duncan, R. ( 2018 )

J-S85017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RALPH M. DUNCAN :
:
Appellant : No. 645 WDA 2017
Appeal from the PCRA Order April 5, 2017
In the Court of Common Pleas of Indiana County
Criminal Division at No(s): CP-32-CR-0000822-2012
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
JUDGMENT ORDER BY PANELLA, J. FILED MAY 01, 2018
Appellant, Ralph M. Duncan, pled to one count of sexual assault and two
counts of witness intimidation, following his sexual molestation of his
stepdaughter and subsequent attempts to prevent his wife and stepson from
reporting the sexual abuse to the police. He is serving an 8½ to 30 year
sentence. Duncan raises a battery of claims in this second, pro se PCRA
petition, but fails to meaningfully address the petition’s untimeliness, or plead
and prove any exception to the PCRA’s time-bar. We affirm.
The timing of a petition “is a threshold question implicating our subject
matter jurisdiction and ability to grant the requested relief.” Commonwealth
v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations omitted). A second
petition must be filed within one year of the date the judgment is final unless
the petition alleges, and the petitioner proves, an exception to the timeliness
requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking one
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of these statutory exceptions “shall be filed within 60 days of the date the
claim could have been presented[,]” 42 Pa.C.S.A. § 9545(b)(2), and
exceptions to the PCRA’s time bar must be pled in the petition, see
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
Duncan was sentenced on March 25, 2013. He thereafter appealed to
this Court, which affirmed his judgment of sentence. Duncan’s judgment of
sentence became final on March 12, 2014, when his time for filing a petition
for allowance of appeal to the Pennsylvania Supreme Court elapsed. See
Pa.R.A.P. 1113(a); 42 Pa.C.S.A. 9545(b)(3). This petition, filed over two years
later, on March 28, 2016, is patently untimely.
Duncan’s PCRA petition wholly fails to address the PCRA’s timeliness
requirement, or to allege any facts to indicate why his case might be exempt
from the time-bar. Though Duncan’s appellate brief acknowledges the
existence of a timeliness requirement, he fails to plead an exception to it save
for invoking the words “newly discovered fact” on a single page. Duncan does
not even indicate which fact is newly discovered.
Instead, Duncan raises several claims of ineffective assistance of
counsel. Specifically, he alleges that plea counsel was ineffective for a litany
of reasons, including failure to withdraw Duncan’s plea after the
Commonwealth allegedly added additional charges. He shoehorns this and
other contentions into his PCRA petition by claiming appellate counsel and
appointed PCRA counsel for his first petition were ineffective for failing to raise
these issues at earlier stages in the proceedings.
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“[I]t is well-settled that couching a petitioner’s claims in terms of
ineffectiveness will not save an otherwise untimely filed petition from the
application of the time restrictions of the PCRA.” Commonwealth v.
Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted). “This Court has
never suggested that the right to effective PCRA counsel can be enforced via
an untimely filed PCRA petition.” Id. Consequently, we are without jurisdiction
to address Duncan’s ineffectiveness claims.
Duncan also claims the PCRA court’s Rule 907 notice failed to correctly
apprise him of why his petition was denied without a hearing. Duncan indicates
the notice stated his petition was time-barred and its issues were previously
litigated, but that the court’s Rule 1925(a) opinion instead finds Duncan’s
ineffective assistance pleadings deficient. Notwithstanding the court’s decision
to evaluate these ineffectiveness claims in its Rule 1925(a) opinion, the Rule
1925(a) opinion does correctly note Duncan’s claims are time-barred. The
Rule 907 notice therefore properly informed him why his petition was denied
without a hearing.
As Duncan’s petition is untimely, and he failed to argue the applicability
of any of the PCRA’s statutory exceptions to the time-bar, we are without
jurisdiction to consider the merits of his petition. Consequently, we affirm the
PCRA court’s order denying relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2018
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