J-S81045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    CHARLES EDWARD HOYER,

                             Appellant                No. 335 MDA 2017


                Appeal from the Order Entered January 19, 2017
                in the Court of Common Pleas of Lebanon County
               Criminal Division at Nos.: CP-38-CR-0001410-2007
                            CP-38-CR-0001411-2007
                            CP-38-CR-0001669-2008


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

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 16, 2018

        Appellant, Charles Edward Hoyer, appeals pro se from the order denying

his post-conviction motion to compel discovery. We affirm.

        Appellant was convicted at the above docket numbers on March 3, 2008,

May 9, 2008, and October 7, 2009, of several sex crimes involving minor

boys.1 On April 14, 2008 and October 8, 2008, the court imposed judgments

of sentence in docket numbers 1410-2007 and 1411-2007.             This Court


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*   Retired Senior Judge assigned to the Superior Court.

1 Specifically, Appellant was convicted of three counts of endangering the
welfare of children, 18 Pa.C.S.A. § 4304(a); four counts of corruption of
minors, 18 Pa.C.S.A. § 6301(a); and eleven counts of indecent assault, 18
Pa.C.S.A. § 3126(a)(1)-(4), and (7)-(8).
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affirmed the judgments of sentence on September 8, 2009 and September 9,

2009. (See Commonwealth v. Hoyer, 986 A.2d 1256 (Pa. Super. 2009)

(unpublished memorandum); Commonwealth v. Hoyer, 986 A.2d 1257 (Pa.

Super. 2009) (unpublished memorandum)).          The trial court imposed the

judgment of sentence for docket number 1669-2008 on December 1, 2009,

and this Court affirmed on January 14, 2011.       (See Commonwealth v.

Hoyer, 23 A.3d 1083 (Pa. Super. 2011) (unpublished memorandum)).

       On November 5, 2009, at docket numbers 1410-2007 and 1411-2007,

the Lebanon County Public Defender’s Officer filed a motion for the

appointment of conflict counsel to enable Appellant to pursue post-conviction

relief. The court appointed counsel on November 6, 2009, and an amended

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§

9541-9546, was filed on November 18, 2010. After a hearing, the PCRA court

denied Appellant’s petition on August 12, 2011. This Court affirmed the PCRA

court’s order on March 23, 2012, and our Supreme Court denied further review

on September 19, 2012. (See Commonwealth v. Hoyer, 47 A.3d 1255 (Pa.

Super. 2012) (unpublished memorandum), appeal denied, 53 A.3d 757 (Pa.

2012)).2


____________________________________________


2 On November 9, 2011, Appellant filed a pro se PCRA petition at docket
number 1669-2008. Appointed counsel filed an amended petition on April 23,
2012. On October 13, 2015, the court issued a Rule 907 notice of its intent
to dismiss Appellant’s petition without a hearing, from which Appellant



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       On December 16, 2016, Appellant filed a pro se motion to compel

discovery pursuant to Pennsylvania Rule of Criminal Procedure 573(a). On

January 19, 2017, the court denied Appellant’s motion on the basis that he is

not entitled to discovery where there is nothing pending in any of his cases,

and his request for discovery is a fishing expedition. Appellant timely appealed

on February 13, 2017.3

       Appellant raises five issues challenging the denial of his motion to

compel discovery.

       1.    Whether the Commonwealth denied Appellant access to
       discovery materials necessary to prove his innocence and perfect
       his appeal efforts?

       2.     Whether the Commonwealth committed deliberate Brady
       violations when it knowingly denied Appellant discovery crucial to
       his defense pretrial?

       3.    Whether materials exist now that were not present at the
       time of trial that are denied the Appellant?

       4.    Whether some materials requested have been previously
       requested by the Appellant via pro-se motions which have been
       ignored by the Commonwealth?

       5.    Whether some of the materials denied include original
       investigative notes that were not included in pretrial discovery?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).


____________________________________________


appealed. See Pa.R.Crim.P. 907(1). On February 29, 2016, this Court
quashed the appeal because it was not from a final order.

3 On March 23, 2017, Appellant filed a timely court-ordered statement of
errors complained of on appeal. See Pa.R.A.P. 1925(b). The court filed an
opinion on March 29, 2017. See Pa.R.A.P. 1925(a).

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        We note first that “[i]t is [] well-settled that the PCRA provides the sole

means for obtaining collateral review, and that any petition filed after the

judgment of sentence becomes final will be treated as a PCRA petition.”

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal

denied, 944 A.2d 756 (Pa. 2008) (citations omitted).            Here, Appellant’s

judgments of sentence became final after the thirty-day period expired to

petition for allowance of appeal to the Pennsylvania Supreme Court. See 42

Pa.C.S.A. § 9545(b)(3). Specifically, the judgments at docket numbers 1410-

2007 and 1411-2007 became final on October 8, 2009 and October 9, 2009,

respectively; and his sentence at docket number 1669-2008 was final as of

February 14, 2011.4         Therefore, we treat Appellant’s motion to compel

discovery as a PCRA petition.

        Pursuant to the Pennsylvania Rules of Criminal Procedure, “[unless

requested i]n the first counseled petition in a death penalty case,” “[n]o

discovery shall be permitted at any stage of [post-conviction] proceedings,

except upon leave of court after a showing of exceptional circumstances.”

Pa.R.Crim.P. 902(E).        Generally, “[w]e review a PCRA court’s denial of

discovery for an abuse of discretion.” Commonwealth v. Reid, 99 A.3d 470,

486 (Pa. 2014) (citation omitted). However, before we consider the merits of

Appellant’s request for relief, we must consider whether it is timely:


____________________________________________


4   February 13, 2011 was a Sunday.


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     A PCRA petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the
     three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
     judgment becomes final at the conclusion of direct review by this
     Court or the United States Supreme Court, or at the expiration of
     the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).
     The PCRA’s timeliness requirements are jurisdictional; therefore,
     a court may not address the merits of the issues raised if the
     petition was not timely filed. The timeliness requirements apply
     to all PCRA petitions, regardless of the nature of the individual
     claims raised therein.     The PCRA squarely places upon the
     petitioner the burden of proving an untimely petition fits within
     one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations and

footnote omitted).

     Instantly, as discussed above, Appellant’s judgments of sentence

became final on October 8, 2009, October 9, 2009, and February 14, 2011.

Therefore, he had one year from each of those dates to file a timely PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, Appellant’s current

petition, filed on December 16, 2016, is untimely on its face, and we lack

jurisdiction to consider its merits unless he pleads and proves a timeliness

exception. See id.

     Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-recognized

constitutional right. See id. When a petition is filed outside the one-year

time limit, petitioners must plead and prove the applicability of one of the

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three exceptions to the PCRA timing requirements. See Commonwealth v.

Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If the petition is

determined to be untimely, and no exception has been pled and proven, the

petition must be dismissed without a hearing because Pennsylvania courts are

without jurisdiction to consider the merits of the petition.”) (citation omitted).

       In the case sub judice, Appellant fails to acknowledge that his motion is

an untimely PCRA petition, let alone to plead and prove the applicability of a

timeliness exception.5 (See Appellant’s Brief, at 9-12); see Johnston, supra

at 1126. Therefore, we lack jurisdiction to consider the merits of his appeal.

See Jones, supra at 16-17. Accordingly, we affirm.6

       Order affirmed.




____________________________________________


5 To the extent Appellant’s brief could be interpreted liberally to raise the
government interference and newly discovered evidence exceptions, (see
Appellant’s Brief, at 4, 9-12); 42 Pa.C.S.A. § 95445(b)(1)(i)-(ii), he provides
absolutely no pertinent law or discussion to support such claims, and this
Court will not act as counsel and develop arguments on his behalf. See
Pa.R.A.P. 2119(a)-(b); see also Commonwealth v. Cox, 72 A.3d 719, 721
n.3 (Pa. Super. 2013).

6 Moreover, we note briefly that the PCRA court found Appellant merely was
“conduct[ing] a fishing expedition[.]” (PCRA Court Order, 1/19/17, at 3).
Indeed, a cursory review of his appellate brief confirms that he fails to
establish the exceptional circumstances necessary for discovery in post-
conviction proceedings. (See Appellant’s Brief, at 9-12); see also Pa.R.A.P.
2119(a)-(b); Pa.R.Crim.P. 902(E)(1).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/16/2018




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