J-S09035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

BLAKE EDWARD JOINER,

                        Appellant                   No. 1328 WDA 2014


            Appeal from the PCRA Order entered July 28, 2014,
            in the Court of Common Pleas of Clearfield County,
           Criminal Division, at No(s): CP-17-CR-0000390-1997
                         & CP-17-CR0000391-1997


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 11, 2015

      Blake Edward Joiner (“Appellant”) appeals pro se from the order

denying his untimely petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and protracted procedural history are as follows:

            This matter arises as a result of Appellant’s having been
         charged under two Bills of Information: 97-390 and 97-
         391. On Bill 97-390, Appellant was charged with 35
         counts each of Rape, Statutory Rape and related offenses
         which stemmed from allegations of sexual contact between
         his stepdaughter and him between August 1994 and May
         1995. On Bill 97-391, Appellant was charged with 76
         counts each of Rape, Statutory Sexual Assault and related
         charges. These charges were based on similar allegations
         occurring between June 1995 and March 1997.               On
         December 2007, the Bills were consolidated for trial, and
         on January 5, 1998, the Commonwealth nolle prossed 35
         counts of Rape and 35 counts of Statutory Rape. On April
         23, 1998, Appellant entered into a plea agreement with
         the Commonwealth and pled guilty to three counts of Rape
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         and five counts of Corruption of Minors from the original
         390 Bill of Information. Appellant also pled guilty to two
         counts of Rape and five counts of Corruption of Minors
         from the 391 Bill of Information. All of the remaining
         charges were nolle prossed as part of the plea agreement.

Commonwealth v. Joiner, 68 A.3d 341, 342 (Pa. Super. 2013) (footnotes

omitted).

      Thereafter, the trial court sentenced Appellant at both bills of

information to an aggregate term of five (5) years to life imprisonment

pursuant to section 9794 of Megan’s Law in effect at the time.              Appellant

filed a timely appeal to this Court. In an unpublished memorandum filed on

May   25,     1999,   we   recognized      this   Court’s   en   banc    decision   in

Commonwealth v. Halye, 719 A.2d 763 (Pa. Super. 1998), which struck

as unconstitutional section 9794 of Megan’s Law.            We therefore reversed

Appellant’s    judgment    of   sentence     and    remanded     for    resentencing.

Commonwealth v. Joiner, 739 A.2d 558 (Pa. Super. 1999).

      On remand, the trial court resentenced Appellant at both bills of

information to an aggregate term of twenty-five (25) to one-hundred (100)

years of imprisonment.      In an unpublished memorandum filed on April 4,

2000, a divided panel of this Court determined that the trial court improperly

increased Appellant’s minimum sentence without adequate explanation.

Once again, we reversed Appellant’s judgment of sentence and remanded

for resentencing.     Commonwealth v. Joiner, 758 A.2d 721 (Pa. Super.

2000).




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        On subsequent remand, the trial court sentenced Appellant at both

bills of information to an aggregate term of five (5) to twenty (20) years of

imprisonment, and a consecutive twenty-five (25) year probationary term.

Appellant did not file a direct appeal.

        On July 11, 2001, Appellant filed a pro se PCRA petition.               The PCRA

court appointed counsel, and the PCRA court held a hearing on the petition

on September 16, 2003.          By order entered July 2, 2004, the PCRA court

denied post-conviction relief. Thereafter, Appellant successfully sought the

withdrawal of PCRA counsel, and was permitted to proceed pro se. Appellant

filed a timely pro se appeal to this Court. In an unpublished memorandum

filed   on   January   24,     2005,    we     affirmed   the     PCRA     court’s   order.

Commonwealth v. Joiner, 872 A.2d 1271 (Pa. Super. 2005). On July 12,

2005, our Supreme Court denied Appellant’s petition for allowance of appeal.

Commonwealth v. Joiner, 879 A.2d 782 (Pa. 2005).

        On September 28, 2006, Appellant filed a second PCRA petition. The

Commonwealth       filed   a   motion     to    dismiss    this   petition   because     of

untimeliness, and the PCRA court, after appointing counsel for the purpose

of determining whether Appellant’s second PCRA petition was timely, held a

hearing on November 22, 2006. By order entered May 2, 2007, the PCRA

court dismissed Appellant’s second petition. Appellant filed a timely appeal

to this Court. In an unpublished memorandum filed on February 14, 2008,

this Court acknowledged the PCRA court’s rejection of Appellant’s newly-

discovered    evidence     claim,   and      therefore    affirmed   the     dismissal   of

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Appellant’s second PCRA petition.     Commonwealth v. Joiner, 951 A.2d

1212 (Pa. Super. 2008).

     On November 17, 2008, Appellant filed his third pro se PCRA petition,

which the PCRA court dismissed as untimely. Appellant filed a timely pro se

appeal to this Court.   In an unpublished memorandum filed on August 21,

2009, we affirmed the PCRA court’s order denying relief. Commonwealth

v. Joiner, 984 A.2d 1016 (Pa. Super. 2009).                On June 2, 2010, our

Supreme    Court   denied   Appellant’s   petition   for    allowance   of   appeal.

Commonwealth v. Joiner, 996 A.2d 1067 (Pa. 2010).

     Meanwhile, on August 28, 2009, Appellant filed a pro se motion to

amend his first PCRA petition that he had filed on July 11, 2001.                On

September 4, 2009, the PCRA court, correctly treating Appellant’s motion to

amend as a fourth PCRA petition, denied relief. Appellant filed a timely pro

se appeal to this Court. In an unpublished memorandum filed on May 28,

2010, this Court affirmed the dismissal of Appellant’s fourth PCRA as

untimely filed. Commonwealth v. Joiner, 4 A.3d 210 (Pa. Super. 2010).

     Undaunted, Appellant continued to seek post-conviction relief:

           On August 8, 2011, Appellant filed a motion for
        expungement wherein he sought the expungement of the
        35 counts of Rape and Statutory Rape that he stated had
        been nolle prossed in January 1998.     The trial court
        dismissed the motion as an untimely PCRA petition on
        September 14, 2011, and Appellant filed a timely pro se
        appeal.

           In a Memorandum decision filed on June 19, 2012, a
        panel of this Court noted that a motion for expungement is
        not a claim contemplated by the PCRA and, therefore, the

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         trial court had erred as a matter of law in dismissing
         Appellant’s motion as an untimely PCRA petition.
         Commonwealth v. Joiner, [53 A.3d 934 (Pa. Super.
         2012), unpublished memorandum at 3-4]. We proceeded
         to analyze the substance of Appellant’s claim and observed
         that he was entitled to have his petition to expunge
         records of arrests terminated without convictions
         evaluated according to the factors set forth in
         Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877
         (1981).     We further noted that in its brief, the
         Commonwealth had agreed that Appellant was entitled to a
         Wexler hearing as to the charges nolle prossed on
         January 6, 1998, however, we stated that pursuant to
         Commonwealth v. V.G., 9 A.3d 222, 225-26 (Pa. Super.
         2010), Appellant was not entitled to a Wexler hearing as
         to the charges nolle prossed as part of the plea agreement
         entered on April 23, 1998. Id. at 5-6. As such, we
         vacated the trial court’s Order and remanded the matter to
         the trial court to “schedule a hearing on the 70 charges
         nolle prossed in January 1998, prior to the plea
         agreement.” Id. at 6.

Joiner, 68 A.3d at 342-43.

      We further noted that the trial court never held a Wexler hearing,

instead it issued an order on August 7, 2012, which read in pertinent part:

                                    [***]

                  The [c]ourt notes the Commonwealth has no
            opposition to the expungement of 32 counts of Rape,
            and the 35 counts of Rape nol[le] prossed in January
            1998, prior to [Appellant’s] plea agreement of April
            23, 1998. For this reason, no Wexler hearing is
            scheduled on those counts and said counts are
            hereby ORDERED EXPUNGED.

Id. at 343. The panel also referred to the trial court’s footnote:

                  The Superior Court of Pennsylvania referenced
            35 counts of rape in their [sic] non-Precedential
            Decision on this matter. [Appellant] was charged
            with 35 counts of rape, 32 of which were nol[le]

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              prossed in January of 1998. [Appellant] pled guilty
              to the remaining three charges of rape.

Id. On August 30, 2012, Appellant filed a pro se “Petition for Writ of Habeas

Corpus and Release from Custody” which was treated as a notice of appeal.

      With regard to the confusion over which charges had been nolle

prossed at each bill of information, this Court adopted as “sound” the

Commonwealth’s explanation that the order which nolle prossed the thirty-

five counts of rape in January 1998 “was simply entered to the wrong

docket.” Id. at 346. Thus, because “the trial court could not expunge the

three counts of Rape to which Appellant had [pled] guilty and upon which he

had been sentenced,” we affirmed the trial court’s order denying further

relief. Id.

      On June 5, 2014, Appellant filed a petition for “EXPUNGEMENT OF

CHARGES, NOLLE PROSEQUI/DISMISSED/QUASHED” BY THE “REQUEST OF

THE COMMONWEALTH” AND “RELEASE FROM ILLEGAL CUSTODY[.]” Within

this petition, Appellant asserted that he is confined on charges that were

“completely nolle prosequi” and “never reinstated to docket prior to

sentencing.”    Petition, 6/5/14, at 5.   According to Appellant, he should be

released from custody because he is incarcerated on charges that “no-longer

exist.” Id. (emphasis deleted).

      Treating Appellant’s latest filing as a serial untimely PCRA petition, the

PCRA court, on July 2, 2014, issued Pa.R.Crim.P. 907 notice of its intent to

dismiss. Appellant filed a response on July 14, 2014. By order entered July



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28, 2014, the PCRA court denied Appellant’s petition.          This timely pro se

appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.

     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).     Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

     Appellant first asserts that the PCRA court incorrectly treated his latest

filing as a serial untimely PCRA petition.      We disagree.      As stated in this

Court’s 2013 decision, Appellant sought, and received, expungement of all

charges to which he was entitled. Joiner, supra. To the extent Appellant is

claiming he is serving an “illegal sentence” because the charges upon which

he remains confined no longer exist, his claim falls entirely within the PCRA.

See 42 Pa.C.S.A. § 9543(a)(vii). Thus, we next consider whether the PCRA

court properly determined that Appellant’s latest PCRA petition was

untimely.   The timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

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omitted). If a petition is untimely, neither an appellate court nor the PCRA

court has jurisdiction over the petition. Id. “Without jurisdiction, we simply

do not have the legal authority to address the substantive claims” raised in

an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      In a prior appeal, this Court stated:

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           [Appellant’s] judgment of sentence was entered on July
         18, 2000. Appellant had thirty days in which to file a
         direct appeal, at which point his judgment of sentence
         became final. See Pa.R.A.P. 903(a). Therefore, to be
         timely under section 9545(b)(1), the PCRA petition must
         have been filed by August 17, 2001[.]

Joiner, 984 A.2d 1016 (Pa. Super. 2009), unpublished memorandum at 3.

As Appellant filed the instant petition on June 5, 2014, it is untimely unless

he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.     See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

     Appellant has failed to plead and prove any exception to the PCRA’s

time bar.   To the extent that Appellant is arguing he is serving an illegal

sentence, we note, “[a]lthough legality of sentence is always subject to

review within the PCRA, claims must still satisfy the PCRA’s time limits or

one of the exceptions thereto.”   Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999).   Thus, the PCRA court correctly determined that it lacked

jurisdiction to consider Appellant’s PCRA petition.   We therefore affirm the

PCRA court’s order denying Appellant post-conviction relief.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2015




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