J-S59007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                        Appellee            :
                                            :
            v.                              :
                                            :
BARRY E. HANEY, SR.,                        :
                                            :
                        Appellant           :   No. 2148 EDA 2013


             Appeal from the PCRA Order Entered July 12, 2013,
              In the Court of Common Pleas of Wayne County,
             Criminal Division, at No. CP-64-CR-0000152-2006.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                       FILED DECEMBER 03, 2014

      Appellant, Barry E. Haney, Sr., appeals pro se from the order denying

his second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

      In 2006, Appellant pled guilty to aggravated indecent assault.        On

October 20, 2006, he was sentenced to imprisonment in a state correctional

facility for not less than thirty months and not more than ten years.

Appellant did not pursue a direct appeal.

      On October 18, 2007, Appellant filed a PCRA petition asserting

ineffective assistance of counsel. The PCRA court dismissed the petition on

December 15, 2009.        The Superior Court affirmed that decision on

______________________________
*Retired Senior Judge assigned to the Superior Court.
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September 10, 2010, and the Supreme Court denied the petition for

allowance of appeal on June 1, 2011. Commonwealth v. Haney, 272 EDA

2010, 13 A.3d 979 (Pa. Super. filed September 10, 2010) (unpublished

memorandum), appeal denied, 23 A.3d 540 (Pa. filed June 1, 2011).

      Appellant filed the current PCRA petition, his second, on April 24,

2013. Motion for Post Conviction Collateral Relief, 4/24/13. The PCRA court

dismissed Appellant’s petition on July 12, 2013. Order, 7/12/13. Appellant

timely appealed.     The trial court directed Appellant to file a Pa.R.A.P.

1925(b) statement, and Appellant timely complied.

      Appellant presents the following issue for our review:

      I.    Was Appellant denied due process of law when the court
      below entered a decision that was not supported by the record
      or free of legal error?

Appellant’s Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).




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        A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of sentence “becomes

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 time for seeking the review.”            42 Pa.C.S. §

9545(b)(3).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed


1
    The exceptions to the timeliness requirement are:

        (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

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within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).      In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      As noted, the trial court imposed the judgment of sentence on October

20, 2006. Appellant did not pursue a direct appeal. Accordingly, Appellant’s

judgment of sentence became final thirty days after the imposition of

sentence, when the time allowed for filing a direct appeal expired. See 42

Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. Thus, for purposes of section 9545(b),

Appellant’s judgment of sentence became final on November 20, 2006.2

Commonwealth v. Zuniga, 772 A.2d 1028, 1030 (Pa. Super. 2001).

Appellant did not file the instant PCRA petition until April 30, 2012. Thus,

Appellant’s instant PCRA petition is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

      this section and has been held by that court to             apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
2
 We note that because November 19, 2006, fell on a Sunday, Appellant had
until Monday, November 20, 2006, to file his notice of appeal. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last
day of any such period shall fall on Saturday or Sunday, or a legal holiday,
such day shall be omitted from the computation.).                See also
Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004).

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limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

      Appellant maintains that he invoked the exceptions under 42 Pa.C.S. §

9545 (b)(1)(ii) and (iii). Appellant’s Brief at 14. We first note that much of

Appellant’s brief is dedicated to his assertions of “actual innocence” and trial

counsel’s ineffectiveness.   Id. at 14-34.       Appellant also makes claims of

PCRA counsel’s ineffectiveness. Id. at 34-41. Appellant cites to the cases of

Coleman v. Thompson, 111 S.Ct. 2546 (1991), Martinez v. Ryan, 132

S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013), in

support of his claim that counsel’s ineffectiveness can serve as an exception

to the PCRA time bar. Id. at 41.

      In Coleman, the United States Supreme Court held that, for purposes

of   federal   habeas   corpus   relief,    an   attorney’s   inadvertence   in   a

postconviction proceeding does not qualify as “cause” to excuse a procedural

default.   Coleman, 111 S.Ct. at 2566-2567.          Subsequently, in Martinez,

the Supreme Court recognized, again for purposes of federal habeas corpus

relief, a narrow exception to Coleman:           that “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a

prisoner’s procedural default of a claim of ineffective assistance at trial.”




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Martinez, 132 S. Ct. at 1315.      However, “[w]hile Martinez represents a

significant development in federal habeas corpus law, it is of no moment

with respect to the way Pennsylvania courts apply the plain language of the

time bar set forth in section 9545(b)(1) of the PCRA.” Commonwealth v.

Saunders, 60 A.3d 162, 165 (Pa. Super. 2013). Moreover, the Martinez

court specifically cast its holding as “equitable” rather than “constitutional,”

stating, “[t]his is not the case … to resolve whether that exception exists as

a constitutional matter.”   Martinez, 132 S. Ct. at 1315.       Therefore, it is

clear that Martinez does not provide a basis for Appellant to assert the

section 9545(b)(1)(iii) exception to the PCRA’s jurisdictional timeliness

requirements.

      Appellant also refers to the more recent decision of the United States

Supreme Court in Trevino v. Thaler, 133 S.Ct. 1911 (2013).             Trevino

dealt solely with federal habeas corpus relief and whether a state prisoner’s

procedural default, i.e., failure to raise a claim of ineffective assistance of

counsel in a state court, could be excused.     Id. at 1921.    While Trevino

represents a further development in federal habeas corpus law, as in

Saunders, this change in federal law is irrelevant to the time restrictions of

our PCRA.     As such, it too did not announce a new relevant rule of

constitutional law that has been made retroactive by either our Supreme




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Court or the Supreme Court of the United States, as is required by section

9545(b)(1)(iii).

      Appellant further maintains that he has “newly discovered evidence

that establishes trial counsel’s ineffectiveness during pretrial proceedings.”

Appellant’s Brief at 41. Appellant asserts that he obtained “newly discovered

evidence,” “on or about March of 2013,” that the victim made allegations of

sexual assault against her biological father, John Kresge (“Kresge”), but

after investigation by Children and Youth Services, the claims were

determined to be unfounded.        Id. at 42. Appellant claims that this newly

discovered evidence predicated his filing of this second PCRA petition. Id.

      In   order   to   sustain   an   untimely   PCRA   petition   under   section

9545(b)(1)(ii), a petitioner must establish that:

      1) the facts upon which the claim was predicated were unknown
      and 2) could not have been ascertained by the exercise of due
      diligence. 42 Pa.C.S. § 9545(b)(1)(ii). If the petitioner alleges
      and proves these two components, then the PCRA court has
      jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (internal

citations and quotations omitted). The sixty-day time limit related to section

9545(b)(1)(ii) runs from the date the petitioner first learned of the alleged

after-discovered facts. Commonwealth v. Williams, 35 A.3d 44, 53 (Pa.

Super. 2011). A petitioner must explain when he first learned of the facts

underlying his PCRA claims and show that he brought his claim within sixty




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days thereafter. See Commonwealth v. Albrecht, 994 A.2d 1091, 1094

(Pa. 2010) (holding petitioner failed to demonstrate his PCRA petition was

timely where he did not explain when he first learned of facts underlying his

PCRA petition). All of the time limits set forth in the PCRA are jurisdictional

and must be strictly construed. Commonwealth v. Fahy, 959 A.2d 312,

315 (Pa. 2008).

      We first note that Appellant alleges that he learned of this newly

discovered evidence “on or about March 2013.”         Appellant’s Brief at 42.

Appellant further asserts that an affidavit prepared by Kresge reflecting this

evidence was attached as “Appendix 20.” Id.

      A review of the reproduced record indeed reflects an affidavit by

Kresge attached as Appendix 20.         R.R., Appendix 20.      The affidavit,

however, was sworn to by Kresge and notarized on January 24, 2008. Id.

Additionally, Appendix 21 consists of a letter from Wayne County Children

and Youth Services, advising Kresge that the claims of “child physical abuse”

regarding Kresge’s daughter, the victim, were unfounded. Id., Appendix 21.

This letter was dated February 7, 2012. Id.

      Thus, the evidence provided by Appellant does not support his claim

that he learned of these allegations “on or about March 2013.” Accordingly,

Appellant has failed to plead and prove that Appellant became aware of this




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newly discovered evidence within sixty days of the filing of the instant PCRA

petition.

      Moreover, Appellant pleads the exception claiming that the newly

discovered evidence      establishes “trial counsel’s ineffectiveness   during

pretrial proceedings.”    Appellant’s Brief at 41.   Assuming arguendo that

Appellant was able to prove that trial counsel was ineffective during pretrial

proceedings, such determination alone would not likely result in a different

verdict. Johnson, 841 A.2d at 140-141.

      Even if we interpret Appellant’s claim to be that such newly discovered

evidence could establish his innocence, Appellant has failed to plead and

prove the impact this evidence would have in light of his guilty plea.      As

summarized by a prior panel of this court:

             Appellant also seems to claim his counsel was ineffective in
      advising him to plead guilty instead of defending the case on the
      grounds that there was no evidence of penetration as required
      by 18 Pa.C.S.A. § 3125(a). Once again, Appellant has not
      shown us that, before the plea, he was somehow unaware of the
      supposed lack of evidence against him and, only after his plea,
      did he realize his counsel had given deficient advice to plead
      guilty. To the contrary, during Appellant’s plea hearing, the
      Commonwealth indicated the complainant disclosed that
      Appellant “fingered her vagina.” N.T., 07/14/06, at 2. The
      Commonwealth also recounted that Appellant admitted to police
      that he penetrated the complainant’s vagina. Accordingly, there
      was, in fact, evidence of penetration proffered during Appellant’s
      plea. Having heard that evidence, Appellant indicated it was
      correct. He then indicated his satisfaction with counsel and
      entered a plea of guilty.

Haney, 272 EDA 2010 (unpublished memorandum at 5).


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      This Court has explained the following regarding a defendant’s guilty

plea and subsequent attempt to challenge it:

            The longstanding rule of Pennsylvania law is that a
      defendant may not challenge his guilty plea by asserting that he
      lied while under oath, even if he avers that counsel induced the
      lies. A person who elects to plead guilty is bound by the
      statements he makes in open court while under oath and he may
      not later assert grounds for withdrawing the plea which
      contradict[s] the statements he made at his plea colloquy.

                                    ***

      A criminal defendant who elects to plead guilty has a duty to
      answer questions truthfully. We [cannot] permit a defendant to
      postpone the final disposition of his case by lying to the court
      and later alleging that his lies were induced by the prompting of
      counsel.

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(citations omitted).   Thus, Appellant has failed to establish an exception

pursuant to 42 Pa.C.S. § 9545(b)(1)(ii).

      In yet another attempt to invoke an exception to the time bar,

Appellant makes claims of “actual innocence” and maintains that “[a]ctual

innocence, if proved, serves as a gateway through which a petitioner may

pass whether the impediment is a procedural bar.” Appellant’s Brief at 48.

In support of this assertion, Appellant cites to Schlup v. Delo, 115 S.Ct.

851 (1995), and House v. Bell, 126 S.Ct. 2064 (2006), as well as

McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). Id. at 15-16, 48-50.




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      In Schlup, the Supreme Court held that where a defendant shows that

a federal constitutional violation “probably resulted” in a conviction of one

who is actually innocent, he may avoid procedural bars to the consideration

of the merits of his constitutional claims. Schlup, 115 S.Ct. at 867. Unlike

the United States Supreme Court’s treatment of successive habeas corpus

petitions, however, the Pennsylvania Supreme Court has expressly rejected

the proposal to permit equitable exceptions to circumvent the jurisdictional

nature of the PCRA statutory time bar. Commonwealth v. Robinson, 837

A.2d 1157, 1161–1162 (Pa. 2003). Hence, Appellant’s reliance upon Schlup

is unavailing.

      Similarly, Appellant’s reliance on House is misdirected.        House

addressed the question of how a “gateway claim” of actual innocence may

overcome state-court procedural defaults for purposes of a later federal

habeas corpus claim. House, 126 S.Ct. at 2068. House has no bearing on

state court post-conviction proceedings such as the PCRA.

      Additionally, in McQuiggin the Supreme Court of the United States

held that a claim of actual innocence, if proved, can serve as a gateway

through which a petitioner may pass the one-year time bar for filing an

otherwise untimely first federal habeas corpus petition when the claim of

actual innocence is supported by newly-discovered evidence.     McQuiggin,

133 S.Ct. at 1926. This ruling concerns federal habeas corpus petitions and




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time limitations and is inapplicable to Appellant’s instant state PCRA petition.

Further, the Supreme Court of the United States did not expressly

pronounce that McQuiggin applies retroactively, and it does not represent a

watershed change in procedural law.       Thus, McQuiggin is inapplicable to

Appellant’s case and provides no relief from the PCRA’s time bar.

      In sum, the PCRA court did not err in finding Appellant’s petition was

time-barred and that none of the exceptions to the one-year time limit

applied.   Consequently, the PCRA court lacked jurisdiction to address the

claims presented and grant relief.    See Commonwealth v. Fairiror, 809

A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction

to hear untimely petition). Likewise, we lack jurisdiction to reach the merits

of the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits

of appeal from untimely PCRA petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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