Com. v. Cool, J.

J-S26012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMY ALLEN COOL :
:
Appellant : No. 1123 WDA 2019
Appeal from the PCRA Order Entered June 24, 2019
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0002709-2012
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED JULY 10, 2020
Jeremy Allen Cool (Appellant) appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court determined that Appellant’s petition was untimely. The
court recited the factual and procedural history underlying this appeal as
follows:
[Appellant] was convicted after a jury trial of eleven (11)
counts of sexual offenses against two (2) minor victims.
[Appellant] was sentenced on October 25, 2013 within the
standard range of the sentencing guidelines to an aggregate term
of 22 to 44 years of incarceration. The Pennsylvania Superior
Court affirmed the Judgment of Sentence in an unpublished
Memorandum Opinion on November 14, 2014. A Petition for
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S26012-20
Allowance of Appeal to the Pennsylvania Supreme Court was
denied on June 3, 2015.
[Appellant’s] first PCRA Petition was filed on May 26, 2016
and counsel was appointed. A [Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc)] “no-merit” letter was submitted
by counsel on September 26, 2016, and the [PCRA c]ourt issued
the Final Order dismissing and denying the Petition on November
18, 2016. [Appellant] took an appeal to the Superior Court from
that Order. [Appellant] filed a Motion on April 13, 2017 requesting
that his “Complete Case File” be turned over to him by his PCRA
counsel, William Hathaway. The Superior Court issued an Order
on April 27, 2017 remanding the case for 30 days to the [PCRA
c]ourt, during which time the [PCRA] court was ensure all
materials of record were to be provided to [Appellant] for the
prosecution of his appeal. Further, briefing schedules were
suspended with a new briefing schedule to be set once the record
was returned to the Superior Court. This [PCRA c]ourt ordered
Attorney Hathaway to forward his complete case file to [Appellant]
on or before May 30, 2017. Attorney Hathaway notified the
[c]ourt by letter dated May 16, 2017 that he had forwarded his
complete file to [Appellant]. [Appellant], on May 24, 2017, filed
a Motion with the [c]ourt claiming that the materials he had
received from Attorney Hathaway were not all of the materials of
record necessary for him to prosecute his appeal. [Appellant]
wanted the [c]ourt to compel Attorney Hathaway to locate and
turn over his complete case file. The Motion was denied on June
19, 2017. [Appellant], prior to that ruling, filed a Motion with the
Superior Court on June 1, 2017 to “Compel PCRA Counsel to
Locate and Turn Over the Petitioner’s Complete Case File.” The
Superior Court denied that Motion but said [Appellant] may argue
lack of documentation in his pending appeal.
The Superior Court ruled on the appeal on December 22,
2017. The Superior Court remanded the case to the lower court
sua sponte only as to the “consideration of the applicability of
[Commonwealth v.] Muniz [164 A.3d 1189 (Pa. 2017)] to the
Petitioner’s sentence.” Commonwealth v. Jeremy Allen Cool,
No. 1926 WDA 2016 p.6. [Appellant] raised a myriad of issues on
appeal of his PCRA as to ineffective assistance of counsel
(including PCRA counsel), all of which were specifically rejected by
the Superior Court. The Superior Court, in its December 22, 2017
Opinion, affirmed the “PCRA court’s order with respect to the other
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issues raised by Appellant in his PCRA petition.” Commonwealth
v. Jeremy Allen Cool, No. 1926 WDA 2016, p.7. [Appellant] had
argued PCRA counsel’s ineffectiveness in his appeal on the basis
of the failure to receive his complete case file prejudiced him from
being able to raise all of the issues of ineffectiveness of counsel.
The Superior Court ruled that PCRA counsel’s ineffectiveness
cannot be raised for the first time on appeal, but must be raised
in a response to the lower court’s Rule 907 Notice to Dismiss.
[Appellant] did not file such a response and so the Superior Court
found the claim unreviewable. Id., pp.13-14. A Petition for
Allowance of Appeal to the Supreme Court was not filed.
The PCRA Petition in the instant appeal is [Appellant’s]
second, and was filed March 2[8], 2019. The [PCRA c]ourt filed
its Opinion and Notice of Intent to Dismiss PCRA Without Hearing
Pursuant to PA.R.Crim.P. 907(1) on May 14, 2019, and issued the
Final Order June 24, 2019.
PCRA Court Opinion, 10/9/19, at 1-3 (footnote omitted).
On July 22, 2019, Appellant filed a timely pro se notice of appeal. Both
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. On appeal, Appellant presents a single question
for review:
I. DID THE PCRA COURT ABUSE ITS DISCRETION WHEN IT
FAILED TO COMPLY WITH THE SUPERIOR COURT’S ORDER
MANDATING “PCRA COURT SHALL ENSURE THAT THE
APPELLANT IS PROVIDED WITH ALL MATERIALS OF
RECORD NECESSARY FOR THE PROSECUTION OF THIS
INSTANT APPEAL”?
Appellant’s Brief at 4.
Appellant recognizes that in reviewing the denial of a PCRA petition, our
review is limited to examining whether the PCRA court’s findings are supported
by the record and free of legal error. See Appellant’s Brief at 2; see also
Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011). It is well settled
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that we view the findings of the PCRA court and the evidence of record in the
light most favorable to the prevailing party. Id. “The PCRA court’s credibility
determinations, when supported by the record, are binding on this Court;
however, we apply a de novo standard of review to the PCRA court’s legal
conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).
With regard to the timeliness of his second petition, Appellant states
only that it “was timely filed and this issue was properly raised and preserved
during the Appellant’s first PCRA petition.” Appellant’s Brief at 11. Appellant
fails to recognize that a petitioner must file a PCRA petition within one year of
the date on which the petitioner’s judgment of sentence became final, unless
one of the three statutory exceptions applies:
(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). A petitioner must file a petition invoking one of
these exceptions within one year of the date the claim could have been
presented. 42 Pa.C.S.A. § 9545(b)(2). If a petition is untimely, and the
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petitioner has not pled and proven any exception, “neither this Court nor the
trial court has jurisdiction over the petition. Without jurisdiction, we simply
do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007). Thus,
we lack jurisdiction unless Appellant has pled and proven one of the three
timeliness exceptions of Section 9545(b)(1). See id.
It is well settled that no court has jurisdiction to hear an untimely PCRA
petition. See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
2003). Here, Appellant does not claim or argue an exception to the PCRA
time-bar prescribed in 42 Pa.C.S.A. § 9545(b)(1). In his petition, where the
typed text reads: “ALTHOUGH THIS PCRA PETITION IS BEING FILED MORE
THAN ONE YEAR AFTER THE DATE OF FINAL JUDGMENT, I HEREBY ALLEGE
AND CAN PROVE THAT THE FOLLOWING EXCEPTION AS BEEN MET: . . . ”; in
each of the successive three statutory sections listed, “N/A” is handwritten,
presumably by Appellant, to indicate that the statutory exceptions are not
applicable. See PCRA Petition, 3/28/19, at 3. We therefore agree with the
PCRA court that Appellant’s second petition, filed March 28, 2019, is untimely,
because Appellant’s judgment of sentence became final on June 3, 2015, one
year after the Supreme Court denied his petition for allowance of appeal from
this Court’s decision affirming his judgment of sentence. See PCRA Court
Opinion, 10/9/19, at 1, 4; Commonwealth v. Cool, No. 1898 WDA 2013 (Pa.
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Super. Nov. 14, 2014) (unpublished memorandum), appeal denied, 582
WAL 2014 (Pa. filed June 3, 2015).
Moreover, we agree with the PCRA court that even if the underlying
petition was timely, the “issue raised by [Appellant in his second PCRA
petition] was raised in his appeal of the denial of his first PCRA petition.” PCRA
Court Opinion, 10/9/19, at 4 n.2. Appellant appealed the issue without
success, and did not seek allowance of appeal with the Supreme Court.
Commonwealth v. Cool, No. 1926 WDA 2016 (Pa. Super. Dec. 22, 2017)
(unpublished memorandum).
For the above reasons, we affirm the dismissal of Appellant’s second
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2020
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