J-S66028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                      v.

CURTIS R. GOVAN

                           Appellant                 No. 148 MDA 2016


              Appeal from the PCRA Order December 30, 2015
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000735-1996
                                        CP-22-CR-0000905-1996


BEFORE: BOWES, J., PANELLA, J., JENKINS, J.

MEMORANDUM BY PANELLA J.                         FILED OCTOBER 13, 2016

      Appellant, Curtis R. Govan, appeals pro se from the order dismissing

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

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

      The PCRA court summarized the relevant procedural and factual

history as follows.

             Following a jury trial from August 5-9, 1996, [Govan] was
      found guilty of first degree murder for the shooting of Robert
      Vasquez. [Govan] was also found guilty of [a]ggravated
      [a]ssault, two counts of [r]obbery, and three counts of
      [c]onspiracy. On August 27, 1996, [Govan] was sentenced to a
      life term imprisonment, plus a term of thirty-one to sixty-two
      years, to run concurrently with the life sentence. The Superior
      Court affirmed the judgment of sentence on April 13, 1999. On
      July 29, 1999, the Pennsylvania Supreme Court denied a Petition
      for Allowance of Appeal.

           [Govan] filed a first counseled PCRA petition on June 22,
      2000, which the court dismissed on July 12, 2002. The Superior
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      Court affirmed the court’s dismissal of the first PCRA on
      September 26, 2003, and on March 16, 2004, the [Pennsylvania]
      Supreme Court denied a Petition for Allowance of Appeal.

             [Govan] filed a second PCRA on May 24, 2004, seeking
      relief based upon recantation testimony of a Commonwealth
      witness at trial. The court appointed counsel. The court deemed
      the second PCRA untimely, and dismissed the [p]etition on
      February 16, 2005. The Superior Court vacated the trial court
      [o]rder, and remanded the matter to the PCRA court for an
      evidentiary hearing to determine the timeliness of the [p]etition
      based upon the [p]risoner [m]ailbox [r]ule. An evidentiary
      hearing was held on November 10, 2005. Based upon the
      evidence presented therein, the court found the [p]etition to
      have been timely filed. The court considered and denied the
      second PCRA by [m]emorandum [o]pinion and [o]rder filed
      August 18, 2006. The [c]ourt dismissed the [p]etition by [f]inal
      [o]rder filed February 7, 2007. [Govan] appealed, and the
      Superior Court affirmed by memorandum [o]pinion dated
      November 16, 2007.

            [Govan] filed a third PCRA petition on July 15, 2008 which
      the court denied by [f]inal [c]ourt [o]rder on March 3, 2010.
      [Govan] took no appeal. Thereafter, on March 12, 2010, [Govan]
      filed a “Petition to Review Evidence Dismissed[,]” which the
      court denied by [o]rder of March 18, 2012.

           [Govan] filed a fourth PCRA on August 28, 2012, then an
      [a]mended PCRA on September 20, 2012. [Govan] filed a
      [m]otion for [d]iscovery on November 13, 2012, which the court
      denied by [c]ourt [o]rder on November 19, 2012. On January
      23, 2013 the court dismissed [Govan’s] fourth PCRA. [Govan]
      appealed to the Superior Court and by [o]rder filed October 10,
      2013, the Superior Court affirmed.

           Subsequently, on August 15, 2015, [Govan] filed a fifth
      PCRA.


PCRA Court Opinion, 11/24/15, at 1-2. On December 30, 2015, the PCRA

court dismissed Govan’s fifth PCRA petition as untimely. This pro se appeal

follows.


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       Prior   to   addressing Govan’s substantive   claims, we    must   first

determine whether the PCRA court correctly concluded that Govan’s latest

pro se PCRA petition was untimely filed.

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

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

is final, unless the petition alleges and proves an exception to the time for

filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition

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

the date the claims could have been presented.” Hernandez, 79 A.3d at

651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Exceptions to the time bar must

be pled in the petition, and may not be raised for the first time on appeal.

See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

       Govan’s judgment of sentence became final on October 27, 1999,

when the filing period for a writ of certiorari expired. See 42 Pa.C.S.A. §

9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, Govan needed to file the petition

at issue by October 26, 2000 in order for it to be timely.1 Govan filed the

____________________________________________


1
 The year 2000 was a leap year, therefore October 26, 2000 constitutes one
year from the date Govan’s judgment of sentence was finalized.



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instant petition almost sixteen years later; it is blatantly untimely unless he

has satisfied the burden of pleading and proving one of the enumerated

exceptions applies.

      Govan acknowledges that his petition was untimely, but claims that

the PCRA court should have granted an evidentiary hearing because he pled

the newly-discovered evidence exception in his PCRA petition. See 42

Pa.C.S.A. § 9545(b)(1)(ii); see also Appellant’s Brief, at 15. Govan

contends that the PCRA court had jurisdiction over his petition because he

presented his newly discovered evidence within sixty days of discovery. See

id. We disagree.

      In order for the newly-discovered evidence exception to the PCRA time

requirement to apply, a petitioner must prove that “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.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

Therefore, for the exception to apply, Govan must prove that the new

evidence, in this case Govan’s childhood mental health records, was

unknown to Govan and could not have been ascertained earlier by the

exercise of due diligence. Govan fails to plead ignorance of his childhood

mental health records. Further, Govan offers no explanation in his petition or

brief as to why he could not have obtained his medical records earlier than

June 3, 2015. Rather, Govan asserts that he meets the due diligence

requirement because he filed his fifth PCRA petition within sixty days of

receiving the medical reports. Govan’s reasoning is flawed. Govan incorrectly

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relies upon the fact that the statute requires a petitioner plead an exception

within sixty days of the date they learn of the exception to establish that he

acted with due diligence in discovering the new evidence. See 42 Pa.C.S.A.

§ 9545(b)(2). However, complying with this provision only shows that a

petitioner acted with due diligence in presenting the claim to the court; it

does nothing to establish that a petitioner acted diligently in working to

discover new evidence. Therefore, these allegations do not satisfy the

requirement to plead, and establish, that the evidence could not have been

obtained earlier with the exercise of due diligence.

      In sum, Govan’s latest PCRA petition is untimely, and he failed to

successfully plead any exception to the timeliness requirements of the PCRA.

Therefore, the PCRA court properly concluded that it lacked jurisdiction and

correctly denied Govan post-conviction relief without a hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




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