J-S16017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DOUGLAS E. HUMPHREY, SR.                 :
                                          :
                    Appellant             :   No. 1710 MDA 2018

         Appeal from the PCRA Order Entered September 26, 2018
   In the Court of Common Pleas of Bradford County Criminal Division at
                     No(s): CP-08-CR-0000755-1992


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                 FILED: MARCH 26, 2019

      Douglas E. Humphrey, Sr. (Appellant) appeals pro se from the order

denying as untimely his sixth petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

             In June 1994, Appellant was sentenced to twenty-three to
      forty-six years’ imprisonment, following his convictions of three
      counts of reckless endangerment, four counts of simple assault,
      four counts of aggravated assault, and one count each of unlawful
      restraint, attempted kidnapping, and attempted murder. A panel
      of this Court affirmed the judgment of sentence on March 21,
      1996. Commonwealth v. Humphrey, 678 A.2d 828 (Pa. Super.
      1996) (unpublished memorandum). Appellant did not file a
      petition for allowance of appeal with our Supreme Court.

Commonwealth v. Humphrey, 4 A.3d 183 (Pa. Super. 2010) (unpublished

memorandum). Appellant’s judgment of sentence became final on April 20,

1996; for his PCRA petition to be timely, Appellant had to file it by April 20,

1997. See id.
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       Appellant filed the underlying pro se PCRA petition on August 2, 2017.

The PCRA court issued its notice to dismiss the petition pursuant to

Pa.R.Crim.P. 907 on May 9, 2018, and entered an order denying relief on

September 26, 2018. Appellant filed this timely appeal.1

       Appellant raises 14 claims.         See Appellant’s Brief at 3-6. However,

before we can examine whether any of the claims have merit, we must

determine whether we have jurisdiction.          Instantly, the PCRA court denied

relief on the basis that Appellant’s petition was untimely, and he failed to plead

an exception to the PCRA’s time-bar.

       Our standard of review of an order denying PCRA relief is “whether the

PCRA court’s determination is supported by the evidence of record and free of

legal error. We grant great deference to the PCRA court’s findings, and we

will not disturb those findings unless they are unsupported by the certified

record.” Commonwealth v. Holt, 175 A.3d 1014, 1017 (Pa. Super. 2017)

(citation omitted). Before we reach the merits of a petitioner’s claim, Section

9545 of the PCRA requires that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.”           42 Pa.C.S.A. § 9545(b)(1).     The timeliness

requirement of the PCRA is “mandatory and jurisdictional in nature.”


____________________________________________


1Although the PCRA court filed an opinion, it did not order Appellant to file a
Pa.R.A.P. 1925(b) statement. On February 25, 2019, the Commonwealth by
written correspondence advised this Court that it would not be filing a brief.


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Commonwealth v. McKeever, 947 A.2d 782, 784-785 (Pa. Super. 2008)

(citing omitted). Therefore, “no court may disregard, alter, or create equitable

exceptions to the timeliness requirement in order to reach the substance of a

petitioner’s arguments.” Id. at 785. Although the timeliness requirement is

mandatory and jurisdictional, “an untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),

and (iii), is met.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.

Super. 2013). The three exceptions to the timeliness requirement are:

      (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).

      Until recently, a petition invoking an exception had to be filed within 60

days of the date the claim could have been presented. However, effective

December 2017 – several months after August 2, 2017, when Appellant filed

the underlying petition – Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2),



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and now provides that a PCRA petition invoking a timeliness exception must

be filed within one year of the date the claim could have been presented. See

Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Although we note the change

in the law from 60 days to one year, it does not apply to Appellant and has no

bearing on this appeal.

      Appellant does not dispute that his PCRA petition is untimely. Rather,

he references the newly-discovered facts and government interference

exceptions to the time-bar, and cites the Pennsylvania Supreme Court’s

decision in Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017)

(holding that pro se prisoners are not subject to the presumption that

information which is of public record cannot be deemed “unknown” for

purposes of subsection 9545(b)(1)(ii)). Appellant claims that both exceptions

“are applicable to the instant case,” and that “newly discovered evidence/facts

were never made part of the public record as a result of government

interference.”   Appellant’s Brief at 9.   Appellant asserts that “government

officials never intended Appellant to find these documents.” Id. He proceeds

to impugn the trial court’s application of the Sentencing Code and his guideline

sentencing form, including an assertion that his guideline sentencing form was

not filed and docketed, “but at some point in time was ‘scanned’ and found

‘elsewhere’ or outside the scope of where it should have been.” Id. at 17-18.

      Upon review, we agree with the PCRA court that there “are several

glaring errors in Appellant’s claims.” PCRA Court Opinion, 12/31/18, at 2.

Notably, the court observed that the sentencing guideline form “was in fact

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made a part of the record,” but in any case, the trial court “concluded that the

sentencing guidelines were not appropriate,” and “the Sentencing Guideline

Form was rendered irrelevant because [the trial court found that] the

guidelines were not appropriate given the danger that Appellant poses to the

community.” Id. The PCRA court concluded that “Appellant has not pleaded

facts establishing that his petition is excluded from the PCRA’s one-year

jurisdictional time limit.”

      We agree.      Upon review, Appellant failed to present a persuasive

argument as to why his petition should qualify for an exception to the PCRA’s

time-bar. See Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super.

2009) (It is an appellant’s obligation to sufficiently develop arguments in his

brief by applying the relevant law to the facts of the case, persuade this Court

that there were errors below, and convince us relief is due because of those

errors.).

      Accordingly, we affirm the order of the PCRA court denying Appellant’s

request for post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2019


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