J-S06004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
STEPHEN A. REMENTER                      :
                                         :
                   Appellant             :   No. 2848 EDA 2017

                Appeal from the PCRA Order August 8, 2017
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0000028-2012


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 08, 2018

      Stephen A. Rementer appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      When he was twenty-three years old, Appellant developed an

obsession with an eight-year-old girl he met at karate class. He became her

karate instructor, and used his position to begin grooming her.      During a

four-month period at the end of 2011, Appellant had sex with the then-

eleven-year-old girl at least six times at her home while her parents were at

work. After her mother came home to find Appellant having intercourse with

the victim, Appellant was arrested and ultimately pled guilty to raping a child

less than thirteen years old.

      Appellant was sentenced to twenty to forty years imprisonment on

November 20, 2012.      This Court affirmed Appellant’s judgment of sentence
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on September 20, 2013, and Appellant did not seek review by our Supreme

Court.    Commonwealth v. Rementer, 87 A.3d 388 (Pa.Super. 2013)

(unpublished memorandum).

       On December 29, 2016, Appellant filed a pro se PCRA petition.       The

PCRA court appointed counsel, noted the apparent untimeliness of the

petition, instructed counsel to file an amended petition, and scheduled a

hearing to address the timeliness issue.         Following the amendment of the

petition, a response by the Commonwealth, and a hearing, the PCRA court

denied Appellant’s petition as untimely-filed by order of August 8, 2017.

Appellant timely filed a notice of appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925.

       Appellant presents this Court with questions addressing both the

timeliness and substantive merits of his PCRA petition.1 We begin with the

former, as the timeliness of a post-conviction petition is jurisdictional.

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa.Super. 2013).

“Without jurisdiction, we simply do not have the legal authority to address

the substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522

(Pa. 2006) (internal quotation marks omitted).

       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
____________________________________________


1Appellant’s substantive claims allege ineffectiveness of plea counsel and a
defect in the guilty plea colloquy. Appellant’s brief at 4.



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of sentence is 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.

42 Pa.C.S. § 9545(b)(1).       To invoke an exception, the petitioner must

further plead and offer to prove that the claim was raised within sixty days

of the date on which it first became available. 42 Pa.C.S. § 9545(b)(2).

        Appellant’s judgment of sentence became final in 2013 when he did

not file a petition for allowance of appeal in our Supreme Court. 42 Pa.C.S.

§ 9545(b)(3). Appellant’s PCRA petition filed in 2016, therefore, is facially

untimely.    In his amended petition, Appellant invoked the governmental

interference exception of subsection (b)(1)(i) with the following allegations:

        a.   the public defender and assistant district attorney entered
             into a written plea agreement which was binding and
             neither lawyer informed the [c]ourt of the same at
             sentencing or post[-]sentencing;

        b.   [Appellant] was not provided a copy of the written plea
             agreement at any time by either the public defender or
             any government official;


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       c.     government officials including the public defender
              precluded [Appellant’s] access to information necessary for
              a timely appeal by failing to serve [Appellant] with a copy
              of the appellate briefs, the decision of the Superior Court
              of Pennsylvania issued on September 20, 2013; and

       d.     government officials including the public defender and the
              assistant district attorney further interfered with
              [Appellant’s] ability to present his claims by failing to
              advise the [c]ourt at any time of [Appellant’s] hearing
              deficits which, coupled with the ineffective assistance of
              counsel, precluded [Appellant] from being apprised of his
              appellate rights and responsibilities or of the incomplete
              nature of the issues appealed.

Amended PCRA Petition, 3/6/17, at 2-3.

       As the PCRA court aptly noted, the PCRA expressly excludes defense

counsel from the definition of “government officials,” and that Appellant

failed to identify any other government official. PCRA Court Opinion,

10/24/17, at 4 (citing 42 Pa.C.S. § 9545(b)(4)). Moreover, Appellant failed

to explain why these interference claims only became available within sixty

days of his filing the petition, as is required by 42 Pa.C.S. § 9545(b)(2).2

Hence, we agree that Appellant has not properly invoked the governmental-

interference exception.


____________________________________________


2 For example, Appellant obviously has been aware of his hearing difficulties,
as he wore hearing aids at least as far back as the preliminary hearing in
this case. Appellant’s brief at 10. Yet, the record reflects that he was able
to answer questions during the guilty plea colloquy and at his sentencing
hearing, including answering “yes” to questions such as “did you hear what
[your counsel] just told me?” and “Did you hear what she said you did?” N.T.
Guilty Plea, 9/5/12, at 10.



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       The PCRA court opined that what Appellant was “in reality alleging

[was] that prior counsel was ineffective in failing to advise him that the

Superior Court had affirmed the judgment of sentence.”             PCRA Court

Opinion, 10/24/17, at 4. Validating the PCRA court’s supposition, Appellant

on appeal attempts to invoke the subsection (b)(1)(ii) exception, claiming

that his PCRA claims are based upon newly-discovered facts.         Appellant’s

brief at 4. This Appellant cannot do, as “exceptions to the time bar must be

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

appeal.” Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007).

       Even if Appellant had properly and timely invoked this exception by

alleging it in his petition, he fails on appeal to explain how he exercised due

diligence in discovering any new facts relevant to the claims he wishes to

raise. “Due diligence demands that the petitioner take reasonable steps to

protect his own interests.”         Commonwealth v. Robinson, --- A.3d ---,

2018 PA Super 109 *6 (Pa.Super. May 2, 2018) (en banc) (quoting

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015)).

       Indeed, in his brief Appellant either fails to indicate when or upon what

efforts he discovered the facts that underlie his claims,3 or bases them upon


____________________________________________


3  See Appellant’s brief at 11-12 (averring that Appellant “was never
provided a copy of the written plea agreement,” that he “never received any
further legal mail” after receiving a packet “several months after” he arrived
at the SCI indicating his appeal had been filed, and that he filed the instant
(Footnote Continued Next Page)


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facts of which he clearly has been aware since they happened. 4       From the

record before us, we cannot conclude that the newly-discovered facts

exception confers jurisdiction upon any court to decide the substance of his

PCRA claims. Compare Robinson, supra (holding petitioner failed to show

that he acted with due diligence in discovering fact that his plea counsel was

subject to federal prosecution for drug use when he “always ‘knew’ that his

counsel supplied ineffective advice”), with Commonwealth v. Bennett,

930 A.2d 1264, 1273 (Pa. 2007) (concluding hearing was warranted upon

petitioner’s allegations that counsel abandoned him and that he filed his

petition within sixty days of learning that his appeal had been dismissed for

failure to file a brief, where he detailed the efforts he had taken to learn the

status of his appeal).

      Finally, Appellant contends that he cannot be denied a remedy under

the PCRA given his lack of “knowledge of his appellate rights or of the

disposition of his direct appeal due to his hearing impairment and the failure

of the court, its administrators or prosecuting attorney to communicate

accurate notice of those rights, deadlines or dispositions.” Appellant’s brief

at 5. However, it has long been settled that there are no “ad hoc equitable
(Footnote Continued) _______________________

petition “shortly after being informed by another inmate” of this Court’s
decision on his direct appeal).

4 See Appellant’s brief at 10-11 (indicating the courtroom was noisy and
chaotic and he had trouble hearing because one of his hearing aids was
damaged).



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exceptions to the PCRA time-bar in addition to those exceptions expressly

delineated in the Act.”    Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003) (internal quotation marks omitted).

      Appellant’s PCRA petition was filed more than one year after his

judgment of sentence became final, and he has failed to establish the

applicability of a statutory timeliness exception. Accordingly, the PCRA court

properly denied the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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