Com. v. Bunch, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHELLE LIN BUNCH :
:
Appellant : No. 249 WDA 2019
Appeal from the PCRA Order Entered January 11, 2019
In the Court of Common Pleas of Jefferson County
Criminal Division at No(s): CP-33-CR-0000484-2008
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 13, 2019
Michelle Lin Bunch appeals, pro se, from the order dismissing her third
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546, as untimely. Bunch argues that her facially untimely PCRA
petition was entitled to review under the newly discovered fact exception to
the PCRA’s time-bar, 42 Pa.C.S.A. § 9545(b)(1)(ii). After careful review, we
conclude Bunch is not entitled to relief.
On April 6, 2009, Bunch entered a nolo contendere plea to one count
each of involuntary deviate sexual intercourse (“IDSI”) and incest. She was
sentenced to an aggregate ten to twenty years’ incarceration plus a
consecutive ten years’ probation. She did not file a post-sentence motion or
direct appeal.
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On March 12, 2010, Bunch filed, pro se, her first PCRA petition, asserting
there was a lack of evidence to support her convictions. Counsel was
appointed who subsequently filed a petition to withdraw along with a no-merit
letter pursuant to Commonwealth v. Friend, 896 A.2d 607 (Pa. Super.
2006). Based on the allegations made by counsel in the no-merit letter, the
PCRA court issued a notice of intent to dismiss the petition pursuant to
Pa.R.A.P. 907 and subsequently dismissed the petition.
On September 19, 2011, Bunch filed a “motion for restoration of
appellate rights nunc pro tunc” contending there was evidence of her
innocence that seemed to “just up and disappear,” again arguing there was a
lack of evidence to support her convictions, and that she had still not received
the polygraph exam she requested. The court denied the motion.
On October 18, 2018, Bunch filed her second PCRA petition, asserting
she had discovered new evidence in the form of an excerpt from a Facebook
conversation between the victim and a friend in which the victim stated “If
Michelle confesses what she did she [will] get out early but she won’t [and] I
don’t blame her [because] she didn’t do what she did.” PCRA petition,
10/18/2018, at 3. The PCRA court issued notice of its intent to dismiss the
petition, concluding Bunch failed in her attempt to invoke the newly discovered
fact exception to overcome the PCRA’s time-bar. Specifically, the PCRA court
found Bunch failed to allege the date she received the Facebook conversation,
thereby not satisfying the statutory requirement that an appellant must allege
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and prove that she proffered the new facts within sixty days of when she first
learned about them. The PCRA court also found the “new facts” were merely
vague statements that lacked evidentiary value.
Bunch responded to the notice of intent to dismiss by claiming the soon-
to-be effective amendment to 42 Pa.C.S.A. § 9545(b)(1),1 increased the time
in which a petitioner must present her new facts after learning of them from
sixty days to one year. Bunch argued that the expanded time limit applied to
her and therefore her petition should not be dismissed. The PCRA court
dismissed the PRCA petition, noting the amendment had not yet taken effect
and as such did not apply to her current petition. The court further noted that
Bunch could file another petition alleging new facts once the amendment took
effect.
On January 10, 2019, Bunch filed her third PCRA petition, re-asserting
her new evidence claim based on the Facebook messages, but this time
asserting she learned of them in June of 2017. The PCRA court issued notice
of its intent to dismiss Bunch’s petition as untimely, again finding she failed in
her attempt to invoke the PCRA’s newly discovered fact exception to overcome
the PCRA’s time-bar. The PCRA court noted that Bunch indicated in her own
____________________________________________
1 On October 24, 2018, the General Assembly amended section 9545(b)(2) of
the PCRA statute to expand the time for filing a petition from sixty days to one
year from the date the claim could have been presented. See 2018
Pa.Legis.Serv.Act 2018-146(S.B. 915), effective December 24, 2018.
Importantly, the amendment applies only to claims arising on or after
December 24, 2017. See id.
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handwriting that she learned of the Facebook messages in June of 2017,
eighteen months prior, beyond the time frame in which the court would have
jurisdiction to address the merits of her claim.
Bunch did not file a response. Instead, she filed a premature appeal to
this Court, which was perfected once the PCRA court entered its order denying
Bunch’s third PCRA petition. See Pa.R.A.P. 905(a)(5); see also
Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.3 (Pa. Super. 2012)
(providing that a notice of appeal filed after the issuance of a Pa.R.A.P. 907
notice but before the entry of an appealable order shall be treated as filed
after the appealable order is entered).
Prior to reaching the merits of Bunch’s claims on appeal, we must first
consider the timeliness of her PCRA petition. See Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014).
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence becomes final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration of
the time for seeking such review. The PCRA’s timeliness
requirements are jurisdictional; therefore, a court may not
address the merits of the issues raised if the petition was not
timely filed. The timeliness requirements apply to all PCRA
petitions, regardless of the nature of the individual claims raised
therein. The PCRA squarely places upon the petitioner the burden
of proving an untimely petition fits within one of the three
exceptions.
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and
footnote omitted).
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Since Bunch did not file a post-sentence motion or a direct appeal, her
judgment of sentence became final on October 2, 2009, when her time for
seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)
(judgment of sentence becomes final “at the conclusion of direct review … or
at the expiration of time for seeking the review”). The instant petition – filed
more than nine years later – is patently untimely. Thus, the PCRA court lacked
jurisdiction to review Bunch’s petition unless she was able to successfully
plead and prove one of the statutory exceptions to the PCRA’s time-bar. See
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
The PCRA provides three exceptions to its time-bar:
(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.A. § 9545(b)(1)(i)-(iii). For claims arising prior to December 24,
4017, a petitioner asserting one of these exceptions must file a petition within
sixty days of the date the claim could have first been presented. See 42
Pa.C.S.A. § 9545(b)(2). Exceptions to the time-bar must be pled in the
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petition and may not be raised for the first time on appeal. See
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
As the trial court correctly indicated, Bunch admitted herself that she
learned of the Facebook messages (i.e. newly discovered facts) in June of
2017. Bunch did not file the instant PCRA petition until one and a half years
later on January 10, 2019. Therefore, the PCRA court properly concluded
Bunch’s PCRA petition was untimely and does not fall under an exception to
the PCRA time-bar. We affirm the PCRA court’s order dismissing the petition.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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