J-S13039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

ROWLANDA KENNEY

                          Appellant                  No. 1542 WDA 2014


            Appeal from the PCRA Order dated August 22, 2014
               In the Court of Common Pleas of Blair County
             Criminal Division at No: CP-07-CR-0001080-1997


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                              FILED MAY 12, 2015

      Appellant Rowlanda Kenney appeals from the August 22, 2014 order of

the Court of Common Pleas of Blair County (“PCRA court”), which dismissed

as untimely Appellant’s request for collateral relief under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.        For the reasons set forth

below, we affirm.

      The   facts   and   procedural   history   underlying   this   appeal   are

undisputed. On June 9, 1998, Appellant was sentenced to life imprisonment

following her jury conviction of first-degree murder and endangering the

welfare of a child in connection with the murder of her boyfriend’s

four-year-old daughter.      On February 22, 2000, a panel of this Court

affirmed Appellant’s judgment of sentence.          See Commonwealth v.

Kenney, 754 A.2d 19 (Pa. Super. 2000) (unpublished memorandum).
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Subsequently, our Supreme Court denied Appellant’s petition for allowance

of appeal.    See Commonwealth v. Kenney, 764 A.2d 1066 (Pa. 2000).

On December 27, 2000, ninety days following our Supreme Court’s denial of

her petition and the time for Appellant to file a petition for writ of certiorari

with the United States Supreme Court had expired, Appellant’s judgment of

sentence became final.          See 42 Pa.C.S.A. § 9545(b)(3); United States

Supreme Court Rule 13.

       On January 9, 2001, while represented by the Blair County Public

Defender’s Office, Appellant pro se petitioned the trial court for production of

transcripts concerning preliminary hearing, trial and sentencing. On March

8, 2001, the trial court denied the pro se petition.     In so doing, the trial

court noted “It is not the practice of [the trial court] to type transcripts

where there is nothing pending before the [trial court].      In the event of a

request for post conviction relief [the trial court] would reconsider this

request.”1 Trial Court Order, 3/8/01. On March 20, 2001, the Blair County

Public Defender’s Office filed a “Petition to Withdraw as Counsel and for the

Appointment of Counsel,” because Appellant’s wish to file a PCRA petition

was against the public defender’s wishes. On the same day, the trial court


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1
  It is settled that “a court is not required to comply with a defendant’s
request for transcripts in order to pursue relief in a PCRA proceeding where
no such action is pending.” Commonwealth v. Crider, 735 A.2d 730,
733 (Pa. Super. 1999) (emphasis added); see also Commonwealth v.
Ballem, 482 A.2d 1322, 1324 (Pa. Super. 1984).



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granted the petition filed by the public defender’s office and appointed

Russell Montgomery, Esquire, as counsel.2 On June 28, 2001, Appellant filed

a second pro se petition for production of transcripts, which the trial court

denied, noting that “[t]here are no matters pending.”         Trial Court Order,

7/9/01.     On May 22, 2002, Appellant filed a third pro se request for

production of transcripts, which the trial court also denied because no issues

were pending.        On June 4, 2002, Appellant filed a pro se “Motion for

Withdrawal of Counsel,” arguing that Attorney Montgomery be removed as

counsel of record for failing to file a PCRA petition.3 On June 25, 2002, the

trial court denied the motion.

       On October 20, 2010, Appellant filed a pro se PCRA petition, raising

principally claims of ineffectiveness against Attorney Montgomery. Following
____________________________________________


2
  Although it is not an issue on appeal, we note a trial court may not appoint
counsel in anticipation of a defendant’s filing of a PCRA petition. Rule 904
of the Pennsylvania Rules of Criminal Procedure provides in pertinent part
“when an unrepresented defendant satisfies the judge that the defendant is
unable to afford or otherwise procure counsel, the judge shall appoint
counsel to represent the defendant on the defendant’s first petition for post-
conviction collateral relief.” Pa.R.Crim.P. 904(c), see also comment to Rule
904 (“[I]t is intended that counsel be appointed in every case in which a
defendant has filed a petition for post-conviction collateral relief for the first
time and is unable to afford counsel or otherwise procure counsel.”)
(emphasis added); see also Commonwealth v. Glacken, 32 A.3d 750,
752 (Pa. Super. 2011) (noting that “Rule 904(C) of the Pennsylvania Rules
of Criminal Procedure provides that an indigent petitioner is entitled to
representation by court-appointed counsel in connection with his first PCRA
petition”).
3
  The record indicates a dispute as to whether Attorney Montgomery
received a notice of appointment. See Trial Court Opinion, 8/22/14, at 7.



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appointment of new counsel, the Commonwealth moved to dismiss the PCRA

petition on the basis of timeliness on November 30, 2010. On June 7, 2012,

Appellant filed an amended (counseled) PCRA petition, by which she

supplemented her previous pro se petition. In the amended PCRA petition,

Appellant raised only a constitutional claim under Lafler v. Cooper, 132 S.

Ct. 1376 (2012).4        Following several hearings, the PCRA court issued an

opinion and order, dismissing as untimely Appellant’s PCRA petition and

denying relief based on Lafler.          In its opinion, the PCRA court concluded

Appellant failed to overcome the timeliness requirement of the PCRA.

Appellant timely appealed.5

       On appeal,6 Appellant raises a single issue for our review:

       Did the PCRA court err in dismissing [Appellant’s] first Motion for
       Post-Conviction Relief as untimely where the Blair County
       Administrator’s Office failed to properly serve appointed PCRA
       counsel, Attorney Montgomery, with the order of appointment in
       March 2001 which interfered with the timely filing and perfection
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4
  In Lafler, the Supreme Court of the United States held a defendant must
receive post-conviction relief “when inadequate assistance of counsel caused
nonacceptance of a plea offer and further proceedings led to a less favorable
outcome,” and where the defendant has shown that “the outcome of the
plea process would have been different with competent advice.” Lafler, 132
S. Ct. at 1382-85, 1390-91.
5
  The trial court did not order Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal.
6
  “In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).



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      of [Appellant’s] first Motion and resulted in a violated of
      [Appellant’s] rule-based right to effective collateral review
      counsel[.]


Appellant’s Brief at 4.

      As a threshold matter, we must determine whether the court erred in

dismissing as untimely Appellant’s PCRA petition.      The PCRA contains the

following restrictions governing the timeliness of any PCRA petition.

      (b) Time for filing petition.--

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

      (3) For purposes of this subchapter, a judgment becomes final at
      the conclusion of direct review, including discretionary review in
      the Supreme Court of the United States and the Supreme Court
      of Pennsylvania, or at the expiration of time for seeking the
      review.

42   Pa.C.S.A.   §   9545(b).   Section    9545’s   timeliness   provisions   are

jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).



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       Here, as stated earlier, the record reflects Appellant’s judgment of

sentence became final on December 27, 2000.                    See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903(a).            Because Appellant had one year from

December 27, 2000 to file his PCRA petition, the current filing is untimely on

its face given it was filed on October 20, 2010.

       The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant argues for relief based on

only governmental interference under Section 9545(b)(1)(i).7 Our review of

Appellant’s pro se and amended PCRA petitions, however, reveals Appellant

failed to raise the governmental interference exception before the trial court.

As such, Appellant waived this claim.            See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”). We likewise dismiss as waived Appellant’s suggestion that the

after-discovered evidence exception under Section 9545(b)(1)(ii) applies in
____________________________________________


7
  Although abandoned on appeal, Appellant raised only one of the Section
9545(b) exceptions before the trial court. In her amended PCRA petition,
Appellant alleged that, under Section 9545(b)(1)(iii), Lafler created a new
constitutional right that retroactively applied to her case. This Court,
however, has rejected an identical argument in Commonwealth v.
Hernandez, 79 A.3d 649 (Pa. Super. 2013).           The Hernandez Court
determined that Lafler did not create a newly-recognized constitutional right
and, as such, does not provide a petitioner with an exception to the PCRA’s
timeliness requirements. Id. at 654. We also note Appellant did not file her
amended PCRA petition raising the Lafler issue within 60 days of the
decision in Lafler. The Supreme Court decided Lafler on March 21, 2012
and Appellant filed her amended petition on June 7, 2012.



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this case, because she was unaware that Attorney Montgomery had

abandoned her.8

       In sum, given the fact that Appellant filed her first PCRA petition

approximately eight years and ten months after the deadline to file the

petition had expired and she does not satisfy any of the timeliness

exceptions under Section 9545(b), the PCRA court did not err in dismissing

her petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




____________________________________________


8
    Even if Appellant properly had preserved her claims under the
governmental interference and after-discovered evidence exceptions, they
still fail. Appellant provides no facts to establish that she raised the claims
within 60 days under Section 9545(b)(2). Specifically, with regard to after-
discovered evidence, Appellant’s suggestion that she recently discovered
Attorney Montgomery abandoned her is belied by the record. As noted
earlier, on June 4, 2002, Appellant pro se moved to have Attorney
Montgomery withdrawn as counsel of record, arguing he failed to file a PCRA
petition.




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