Com. v. Baney, J.

J-S61014-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JEREMY MICHAEL BANEY
Appellant No. 744 MDA 2015
Appeal from the PCRA Order March 27, 2015
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000109-2002
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY PANELLA, J. FILED DECEMBER 15, 2015
Appellant, Jeremy Michael Baney, appeals from the order dismissing
his fourth petition pursuant to the Post Conviction Relief Act (“PCRA”) as
untimely. Baney argues that the PCRA court erred in concluding that he had
not established that his claims qualified for the previously unknown fact
exception to the PCRA’s time bar. We conclude that the PCRA court did not
err, and therefore affirm.
Given our resolution of this appeal, we need not set forth a detailed
factual and procedural history of this case. We direct the interested reader
to the history set forth in this Court’s memorandum decision resolving
Baney’s appeal from the partial denial of his third PCRA petition. See
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S61014-15
Commonwealth v. Baney, No. 581 MDA 2013 (Pa. Super. filed October 30,
2013) (unpublished memorandum). In that memorandum, we concluded
that Baney’s third PCRA petition was facially untimely, and therefore could
not provide Baney relief in the absence of an established exception to the
PCRA’s time bar provisions. See id., at 8.
Baney’s subsequent PCRA petition, his fourth, is the basis of the
present appeal. It is therefore also facially untimely. “PCRA timeliness
requirements are jurisdictional in nature and, accordingly, a court cannot
hear untimely PCRA petitions.” Commonwealth v. Flanagan, 854 A.2d
489, 509 (Pa. 2004) (citations omitted). Thus, Baney was required to plead
and prove that an exception to the PCRA time-bar applied. See
Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000).
Acknowledging this legal reality, Baney argues that the PCRA court
erred in concluding that he had failed to establish the “previously unknown
fact” exception to the time bar. Baney’s argument is premised upon two
separate alleged facts that he claims were unknown to him until just before
he filed the instant petition.
First, Baney argues that research performed by National Legal
Professional Associates (“NLPA”), at the request of trial counsel but never
used by counsel, qualifies as a previously unknown fact. However, at the
PCRA hearing, Baney described this research as “legal research” about
possible issues on direct appeal. N.T., PCRA Hearing, 1/7/15, at 12-15.
Trial counsel also testified that NLPA conducts legal research. See id., at
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J-S61014-15
54. Thus, Baney’s claim is not one based upon new facts that could have
been presented at trial, but rather about legal issues to be raised on appeal.
This claim is a claim of ineffective assistance of counsel, not “previously
unknown facts.” “[A] claim for ineffective assistance of counsel does not
save an otherwise untimely petition for review on the merits.”
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000)
(citations omitted).
The other fact identified by Baney is the re-sentencing of a co-
defendant in 2008. However, Baney was unable to identify what relevance
this re-sentencing had to his case. See N.T., PCRA Hearing, 1/7/15, at 109.
Therefore, we cannot conclude that the PCRA court erred in concluding that
Baney had not established the applicability of the “previously unknown fact”
exception to the PCRA’s time bar.
Since Baney failed to establish that the PCRA court had jurisdiction to
entertain his petition, we affirm the PCRA court’s order dismissing the
petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2015
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