J-S32041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JOHN T. KATCHMORE                          :
                                               :
                       Appellant               :        No. 1752 MDA 2017


                 Appeal from the PCRA Order October 16, 2017
             in the Court of Common Pleas of Susquehanna County
               Criminal Division at No.: CP-58-CR-0000551-2012


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                     FILED JUNE 26, 2018

       Appellant, John T. Katchmore, appeals from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely.1 We affirm.

       The relevant facts and procedural history of this case are as follows. On

September 6, 2013, a jury convicted Appellant of two counts each of rape of

a child, aggravated indecent assault of a child, and indecent assault of a

person less than thirteen years of age.            On May 14, 2014, the trial court

sentenced Appellant to an aggregate term of not less than two and a half nor

more seven years’ incarceration, followed by forty-two years of probation.

The court also issued an order designating Appellant a sexually violent

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1We have amended the caption to reflect the date the PCRA court’s order was
entered on the docket, instead of the day that it is dated.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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predator. Appellant filed a motion for reconsideration of sentence on May 22,

2014, which the trial court denied by opinion and order entered September 2,

2014. Appellant did not file a direct appeal.2

       Appellant, acting pro se, filed a timely PCRA petition on November 26,

2014. On July 19, 2016, appointed counsel filed a motion to withdraw the

PCRA petition, averring that, after a lengthy consultation with Appellant

regarding the potential negative consequences that could result from his

pursuit of PCRA relief, including the possible receipt of a lengthier sentence,

Appellant wished to withdraw the petition. (See Motion to Withdraw PCRA

Petition, 7/19/16, at 1-2 ¶¶ 3-4, 7).          Counsel further stated that he had

reviewed the record, and did not discover any potential avenues that would

afford Appellant PCRA relief. (See id. at 2 ¶ 5). The PCRA court entered an

order granting the motion to withdraw the PCRA petition on July 26, 2016.

       Nearly one year later, on July 17, 2017, Appellant filed the instant,

counseled PCRA petition. The PCRA court issued notice of its intent to dismiss

the petition as untimely on September 15, 2017. See Pa.R.Crim.P. 907(1).

It entered its order dismissing the petition on October 16, 2017. This timely

appeal followed.3


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2 The trial court explained that, pursuant to an agreement with the
Commonwealth, Appellant relinquished his appellate rights in exchange for
receipt of the minimum sentence. (See Trial Court Opinion, 9/02/14, at 2).

3The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal, nor did it file an opinion. See Pa.R.A.P. 1925.

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      Appellant raises the following issue for our review: “Whether the [PCRA]

court erred, as a matter of law, in denying, without an evidentiary hearing,

Appellant’s second [PCRA petition] as untimely; where the Appellant was

given ineffective advice of counsel to withdraw his timely filed first [PCRA

petition] prior to a scheduled hearing absent any consideration?” (Appellant’s

Brief, at 4) (unnecessary capitalization omitted).

             Our standard of review of a PCRA court’s dismissal of a PCRA
      petition is limited to examining whether the PCRA court’s
      determination is supported by the record evidence and free of
      legal error. Before addressing the merits of [a]ppellant’s claims,
      we must first determine whether we have jurisdiction to entertain
      the underlying PCRA petition. See Commonwealth v. Hackett,
      598 Pa. 350, 956 A.2d 978, 983 (2008) (explaining that the
      timeliness of a PCRA petition is a jurisdictional requisite).

             . . . [A] PCRA petition, including a second or subsequent
      petition, shall be filed within one year of the date the underlying
      judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment
      is deemed 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
      the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

              The three statutory exceptions to the timeliness provisions
      in the PCRA allow for very limited circumstances under which the
      late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).


                                  *    *    *

             We emphasize that it is the petitioner who bears the burden
      to allege and prove that one of the timeliness exceptions applies.

Commonwealth v. Whitehawk, 146 A.3d 266, 269-70 (Pa. Super. 2016)

(some case citations and question marks omitted).




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      To invoke an exception, a petition must allege and the petitioner must

prove:

      (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).

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature. As such, this statutory time-bar implicates
      the court’s very power to adjudicate a controversy and prohibits
      a court from extending filing periods except as the statute
      permits. Accordingly, the period for filing a PCRA petition is not
      subject to the doctrine of equitable tolling; instead, the time for
      filing a PCRA petition can be extended only by operation of one of
      the statutorily enumerated exceptions to the PCRA time-bar.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016) (quotation

marks and citations omitted).

      We also note that, “a PCRA petitioner is not automatically entitled to an

evidentiary hearing.”   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014) (citation omitted). “If the petition is untimely and the petitioner

has not pled and proven an exception, the petition must be dismissed without

a hearing because Pennsylvania courts are without jurisdiction to consider the

merits of the petition.” Commonwealth v. Hudson, 156 A.3d 1194, 1197

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(Pa. Super. 2017), appeal denied, 170 A.3d 1007 (Pa. 2017) (citation

omitted).

       Here, Appellant’s judgment of sentence became final on October 2,

2014, when his time to file a direct appeal with this Court expired.           See

Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until October

2, 2015, to file a timely PCRA petition.         See 42 Pa.C.S.A. § 9545(b)(1).

Because Appellant filed the instant petition on July 17, 2017, it is untimely on

its face, and the PCRA court lacked jurisdiction to review it unless he pleaded

and proved one of the above-listed statutory exceptions to the time-bar. See

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Appellant, however, concedes that none of the enumerated statutory

exceptions applies to his case.          (See Appellant’s Brief, at 10).   Instead,

Appellant argues that former PCRA counsel rendered ineffective assistance by

withdrawing his first PCRA petition against his wishes, without his approval.

(See id. at 10-11).4 He further contends that although none of the exceptions

to the time-bar applies, equity requires that this Court deem his second PCRA

petition timely, in light of counsel’s ineffectiveness. (See id.). We disagree.

       As previously stated, “the period for filing a PCRA petition is not subject

to the doctrine of equitable tolling; instead, the time for filing a PCRA petition

can be extended only by operation of one of the statutorily enumerated

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4 We note that this claim directly contradicts the averment made by former
counsel in the motion to withdraw the PCRA petition that Appellant wished to
withdraw the petition following lengthy consultation. (See supra, at *2).

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exceptions to the PCRA time-bar.” Robinson, supra at 185 (citation and

internal quotation marks omitted; emphasis added). Regarding Appellant’s

claim of ineffective assistance of counsel, “[i]t is well settled that allegations

of ineffective assistance of counsel will not overcome the jurisdictional

timeliness requirements of the PCRA.”            Commonwealth v Wharton, 886

A.2d 1120, 1127 (Pa. 2005) (citations omitted); see also Commonwealth

v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016) (“Appellant’s claim of . . .

counsel’s ineffectiveness does not satisfy an exception to the PCRA time bar.”)

(citation omitted).

       Therefore, because Appellant has not met his burden of proving that his

untimely PCRA petition fits within one of the three exceptions to the time-bar,

we affirm the PCRA court’s order dismissing his petition without an evidentiary

hearing. See Whitehawk, supra at 270; Hudson, supra at 1197.5

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2018
____________________________________________


5We note that, even if Appellant had pleaded an exception to the time bar,
he had an obligation to file a second PCRA petition within sixty days of the
date of the order finally resolving his first PCRA petition.              See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000). As previously
mentioned, Appellant filed the instant petition nearly one year after his first
petition was withdrawn.


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