J-S42036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

RODNEY CHARLES SMITH

                             Appellant                No. 1704 WDA 2015


                 Appeal from the PCRA Order October 12, 2015
         in the Court of Common Pleas of Erie County Criminal Division
                       at No(s): CP-25-CR-0002106-2008

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 12, 2016

        Pro se Appellant, Rodney Charles Smith, appeals from the order of the

Erie County Court of Common Pleas dismissing his third Post Conviction

Relief Act1 (“PCRA”) petition as untimely.      Appellant argues that he was

denied the effective assistance of trial and PCRA counsel and that the trial

judge should have recused himself. We affirm.

        The PCRA court summarizes the facts and procedural history as

follows:

              Between October 20, 2007 and May 2, 2008,
           [Appellant] repeatedly sexually assaulted his five-year-old
           biological daughter. In March of 2009, [Appellant] pled
           guilty to rape of a child, involuntary deviate sexual
           intercourse, endangering the welfare of children, and
           corruption of minors. On July 14, 2009, [Appellant] was
           sentenced to an aggregate term of 15 to 40 years’

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         imprisonment. [Appellant] did not file a post-sentence
         motion or a direct appeal.

            [Appellant] filed his first PCRA petition on [August 10,
         2010].    Following an evidentiary hearing, this Court
         dismissed the petition on May 13, 2011.          [Appellant]
         appealed, and on January 23, 2012, the Pennsylvania
         Superior Court affirmed this Court’s order dismissing the
         petition.  [Appellant] filed a petition for allowance of
         appeal with the Pennsylvania Supreme Court, which was
         denied on July 17, 2012.

            [Appellant] filed his second petition on [December      5,
         2012], which this Court dismissed as untimely              on
         September 3, 2013.         [Appellant] appealed, and       on
         February 6, 2015, the Superior [C]ourt quashed             as
         untimely.

           The instant pro se PCRA petition, filed on [August 24,
         2015], is [Appellant]’s third attempt at collateral review.


Trial Ct. Op., 9/18/15, at 1-2.2

      The PCRA court issued a Pa.R.Crim.P. 907 notice, to which Appellant

did not respond. On October 12, 2015, the trial court dismissed Appellant’s

petition. Appellant appealed on October 20, 2015, and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement. The PCRA court filed its Rule 1925(a)

decision on November 24, 2015.

      Appellant raises the following issues:




2
 The dates of the PCRA petition filing were changed to reflect the prisoner
mailbox rule. See Commonwealth v. Allen, 48 A.3d 1283, 1284 n.2 (Pa.
Super. 2012) (holding that the prisoner mailbox rule considers the date a
PCRA petition is filed as the date it is given to prison officials for mailing).



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        1) Whether [t]rial [c]ounsel failed in his understanding of
        [l]aw as per a SVP hearing by for [s]entencing and let the
        Appellant be sentenced as a SVP without a Hearing.

        2)     Was     there    a    misunderstanding      on  the
        Defendant/Appellant’s PCRA. When the PCRA [c]ounsel
        [s]tated on the [r]ecord that [Appellant] did not file for
        [i]neffectiveness of [c]ounsel on his 1st [sic] PCRA. When
        Attorney Sloane [s]tated that [Appellant] did not put this
        on his PCRA. Appellant did file for [i]neffectiveness of
        [c]ounsel. PCRA [c]ounsel failed to apply this to [t]he
        PCRA.

        3) After a number of tries the Appellant filed a PCRA for
        Relief and the trial [c]ourt stated they were untimely. Was
        this a way to ‘Burn Up’ the Appellate’s [sic] time?

Appellant’s Brief at 2-3 (emphases omitted).

     Before addressing the substantive arguments of Appellant’s claims, we

must first determine whether we have jurisdiction over the PCRA petition.

See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).

     Our standard of review is as follows:

        In reviewing the denial of PCRA relief, we examine whether
        the PCRA court’s determination is supported by the record
        and free of legal error. The scope of review is limited to
        the findings of the PCRA court and the evidence of record,
        viewed in the light most favorable to the prevailing party
        at the trial level. . . . [T]his Court reviews the PCRA
        court’s legal conclusions de novo.

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations

omitted).   Moreover, arguments within an appellant’s brief must include

citations to pertinent authorities. Pa.R.A.P. 2119(a), (b). A failure to cite

legal authority in support of an argument results in a waiver of the issue.

Commonwealth v. B.D.G., 959 A.2d 362, 371 (Pa. Super. 2008).


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       A timely PCRA petition “must normally be filed within one year of the

date the judgment becomes final . . . unless one of the exceptions in §

9545(b)(1)(i)-(iii) applies and the petition is filed within 60 days of the date

the claim could have been presented.”      Commonwealth v. Copenhefer,

941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted).

Section 9545(b)(1) of the PCRA states that second and subsequent petitions

must also be filed within one year of the date the judgment becomes final.

42 Pa.C.S. § 9545(b)(1).

       The three exceptions to the timeliness requirement are interference by

government officials, after-discovered or newly discovered evidence, and a

recently recognized constitutional right that applies retroactively. 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii).   Defense counsel is not considered a government

official.   42 Pa.C.S. § 9545(b)(4).    A claim of ineffective assistance of

counsel generally does not fulfill the governmental interference exception.

Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa. 1999).             Similarly, an

allegation of ineffective assistance of defense counsel does not invoke the

after-discovered evidence exception. Commonwealth v. Gamboa-Taylor,

753 A.2d 780, 785-86 (Pa. 2000).          The defendant in Gamboa-Taylor

argued that his trial and PCRA counsel were ineffective and claimed the

after-discovered evidence exception. Id. at 784-85. The Supreme Court of

Pennsylvania, however, explained that ineffective counsel is not included in

the after-discovered evidence exception because counsel’s ineffectiveness is



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not a previously unknown fact encompassed by the exception. Id. at 785-

86.

      Instantly, we review whether the PCRA court erred in dismissing

Appellant’s third PCRA petition as untimely. See 42 Pa.C.S. § 9545 (b)(1).

Appellant was sentenced on July 14, 2009, to which he did not file a direct

appeal.   His judgment of sentence became final on August 13, 2009.

Appellant therefore had until August 13, 2010 to file a timely PCRA petition.

Appellant’s third and current PCRA petition was filed on August 24, 2015, six

years after his judgment of sentence became final.       We must determine

whether the PCRA court erred in holding that Appellant did not plead and

prove one of the timeliness exceptions.

      Appellant argues that the trial and PCRA counsel were ineffective,3 and

that the trial judge should have recused himself. Appellant’s Brief at 5, 7.

To the extent that these arguments can be construed as invoking the after-

discovered evidence or interference by government official exceptions to the

timeliness requirement, they lack merit. The defendant in Gamboa-Taylor

similarly argued that his trial and PCRA counsel’s ineffectiveness constituted

after-discovered evidence, but the court explicitly stated that a claim of

ineffective counsel is not newly discovered evidence. Gamboa-Taylor, 753

A.2d at 785.    Therefore, Appellant’s ineffective counsel claim does not


3
 Appellant also raised ineffectiveness of counsel in his second PCRA petition,
which was dismissed as untimely. Trial Ct. Op., 3/20/13, at 2-3.



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invoke the after-discovered evidence exception. Similarly, because defense

counsel is not a government official, see 42 Pa.C.S. § 9545(b)(4), Appellant

failed to properly invoke the interference by government official exception.

Finally, because Appellant failed to provide any authority to support a claim

of judicial bias as falling within any of the timeliness requirements, he has

waived this issue. See B.D.G., 959 A.2d at 371.

     Accordingly, we agree with the PCRA court that Appellant has not

properly pleaded and proved any of the timeliness exceptions, and thus his

third PCRA petition is untimely.    See 42 Pa.C.S. § 9545 (b)(1)(i)-(iii);

Copenhefer, 941 A.2d at 648.          Therefore, the PCRA court correctly

dismissed Appellant’s PCRA petition as untimely, and we affirm the order

below. See Miller, 102 A.3d at 992.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2016




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