J-S28029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

STEVEN CRAIG MORRISON,

                         Appellant                    No. 1953 MDA 2014


           Appeal from the PCRA Order entered October 31, 2014,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0003060-1992


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                                 FILED MAY 06, 2015

      Steven Craig Morrison (“Appellant”) appeals pro se from the order

denying his serial 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 succinctly summarized the pertinent facts and

procedural history as follows:

         [Appellant] is a serial PCRA petitioner who pled guilty to
         statutory rape, aggravated indecent assault, and
         corruption of a minor.        [According to the criminal
         complaint, the crimes occurred between November 1990
         and July 1992, when the female victim was five or six
         years old and Appellant was in his mid-twenties.] On
         August 27, 1993, [Appellant] was sentenced to 9.5 years
         to 30 years of incarceration.      At that time, he was
         represented    by    Assistant   Public  Defender    Scott
         Oberholtzer, who subsequently filed an unsuccessful
         motion to modify the sentence. His subsequent appeal to
         the Superior Court also was unsuccessful.             See
         Commonwealth v. Morrison, 644 A.2d 807 (Pa. Super.
         [] 1994) (unpublished memorandum). [Appellant] did not
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        petition for allowance of appeal to the Pennsylvania
        Supreme Court. However, since then, he has filed a litany
        of motions, petitions and appeals that regurgitate a
        multitude of untimely and baseless complaints.

           His latest effort in this regard underlies the appeal sub
        judice. On October 27, 2014, he filed a pro se 9th [PCRA
        petition], coming before this Court with yet another
        attempt to avoid the consequences of his heinous crimes
        by seeking to have his guilty plea withdrawn and his
        sentence vacated. By order dated October 31, 2014, [the
        PCRA court] denied the [petition as untimely filed].

PCRA Court Opinion, 12/15/14, at 1-2 (footnotes omitted).                This timely

appeal followed.     Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.

     This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported   by    the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).      Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).




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      Before addressing the claims raised by Appellant in his pro se brief, we

must first determine whether the PCRA court properly determined that

Appellant’s ninth PCRA petition was untimely.

       The    timeliness   of   a   post-conviction     petition    is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or    (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

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

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to


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the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.     Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

     Appellant’s judgment of sentence became final on April 28, 1994, after

the expiration of time for filing a petition for allowance of appeal with our

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3). Appellant filed this latest

petition over twenty years later.   Thus, “the lateness of [Appellant’s ninth

petition] is glaringly obvious,” PCRA Court Opinion, 12/15/14, at 4, unless

Appellant has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.      See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions.     The PCRA court addressed Appellant’s

unsuccessful attempt to meet this burden:

        [Appellant] did not carry his burden. Recognizing the
        lateness of his claims, [Appellant] sought to invoke the
        timeliness exceptions set forth at Section 9545(b)(1)(i), by
        alleging government interference only by way of Assistant
        Public Defender Oberholtzer’s filing of the untimely [post-
        sentence] motion, and Section 9545(b)(1)(ii), by alleging
        only that he previously did not know that Attorney
        Oberholtzer’s late filing violated his constitutional rights.
        For a number of reasons, this effort to save his otherwise
        untimely Petition fell far short of surmounting the
        jurisdictional threshold.


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          First and foremost, [Appellant] failed to assert, let alone
       prove, that he satisfied the 60-day-limitation period set
       forth at Section 9545(b)(2) as to any claim set forth in his
       otherwise untimely Petition. Considering that all of his
       complaints revolve around alleged unfairness at his
       preliminary hearing and at this 1993 guilty-plea hearing
       and also considering his relentless filing of a multitude of
       motions, petitions, and appeals since then raising, in part,
       the same or similar allegations upon which the instant
       Petition was based, the existence of any factual scenario
       justifying such an assertion was absolutely implausible.
       Simply put, it was impossible for [Appellant] to plead and
       prove that he filed the Petition within 60 days of learning
       about government interference or previously unknown
       facts upon which to invoke any timeliness exception.
       Indeed, he made no effort to do so.

           Even putting aside that fatal deficiency, [Appellant]
       failed to make any argument whatsoever for the
       application of the timeliness exception as to claims other
       than the ineffective-assistance claim. Therefore, those
       claims remained untimely for that additional reason. As to
       the ineffective assistance claim, it also remained untimely
       for the additional reason that his arguments for the
       application of the two timeliness exceptions were not
       compelling. First, a late filing by a public defender is not
       the sort of government interference with the presentation
       of a claim to which the governmental interference
       exception applies.      [See 42 Pa.C.S.A. § 9545(b)(4).]
       Likewise, a defendant’s realization of the legal impact of a
       later filing is not the sort of unknown fact to which the
       unknown-facts exception applies. Second, even assuming
       arguendo that, by some stretch of the imagination, the
       exceptions could have applied to the instant facts,
       [Appellant] would have, or could have, become aware of
       the lateness of the filing and the legal implications no later
       than his receipt of the 1994 appellate decision denying his
       appeal. This further supported [the PCRA court’s] initial
       determination that [Appellant] did not file the late Petition
       within the applicable 60-day limitation period.

          To summarize, [Appellant] failed to establish that he
       satisfied the 60-day limitation period for filing his
       otherwise-untimely PCRA claims, and he failed to establish
       the application of any timeliness exception. Therefore, this

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         Court lacked jurisdiction to review the merits of his
         substantive claims, and the Petition had to be denied.

PCRA Court Opinion, 12/15/14, at 5-6 (citation omitted).

      Our review of the record amply supports the PCRA court’s conclusion

that it lacked jurisdiction to consider Appellant’s ninth PCRA petition.

Although within his pro brief Appellant makes additional assertions regarding

his inability to obtain his court records and claims that he filed his latest

petition within sixty days of speaking with a “prison legal aid,” these new

claims cannot be considered for the first time on appeal.   See generally,

Pa.R.A.P. 302(a).    We therefore affirm the PCRA court’s order denying

Appellant post-conviction relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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