J-S20012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATTHEW BENDEL,

                            Appellant                 No. 720 WDA 2015


                   Appeal from the PCRA Order May 4, 2015,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division, at No(s): CP-02-CR-0005192-2011.


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                                  FILED MAY 06, 2016

        Matthew Bendel appeals pro se from the order dismissing his second

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

§§ 9541-9546, as untimely.1 We affirm.



____________________________________________



    Retired Senior Judge assigned to the Superior Court.
1
  Appellant filed his notice of appeal prematurely. Although the trial court
dated its order denying Appellant’s PCRA petition on February 6, 2015, it
was not entered onto the docket until May 4, 2015. See, e.g.,
Commonwealth v. Gordon, 652 A.2d 317, 320-21 (Pa. Super. 1994)
(explaining that an order is not appealable until it is entered on the docket).
See also Pa.R.Crim.P. 114; Pa.R.A.P. 903(a). Appellant filed his notice of
appeal in the lower court on February 24, 2015. The premature filing of the
notice of appeal does not affect the appeal. See Pa.R.A.P. 905(a)(5). We
have amended the appeal paragraph to indicate the correct date.
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      On November 9, 2011, Appellant entered a negotiated guilty plea to

multiple counts of sex offenses that he perpetrated upon two minor females

over the course of five years. The sexual encounters with the girls began

when they were just thirteen years old.

      The trial court sentenced Appellant in accordance with the plea

agreement to a term of ten to twenty years of imprisonment for the first

count, and no further penalty on the remaining sixteen counts. Appellant

filed neither a post-sentence motion nor a direct appeal.

      Appellant   filed   a   timely,   counseled   PCRA    petition,   and   the

Commonwealth filed an answer. The PCRA court held an evidentiary hearing.

By order entered September 18, 2013, the PCRA court denied relief.

      Represented by new counsel, Appellant filed an appeal to this Court in

which he claimed that the trial court erred in concluding that plea counsel

was not ineffective for permitting him to plead guilty to crimes that were not

supported by the factual record. In a memorandum filed on June 11, 2014,

the Court affirmed the PCRA court’s order denying post-conviction relief.

See Commonwealth v. Bendel, 1633 WDA 2013 (Pa. Super., filed June

11, 2014) (unpublished memorandum). On November 18, 2014, our

Supreme Court denied Appellant’s petition for allowance of appeal.            See

Commonwealth v. Bendel, 104 A.3d 1 (Pa. 2014) (Table).

      Appellant filed his second PCRA petition pro se on January 5, 2015.

The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss the

petition without a hearing. Appellant did not file a response. The PCRA court

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later denied Appellant’s second PCRA petition as patently untimely. This

appeal follows.

      Appellant raises the following issue:

             [1] Whether the PCRA court erred in dismissing
      Appellant’s pro se PCRA petition filed pursuant to Title 42 Pa.C.S.
      §9545(b)(1)(ii),     §9545(b)(1)(iii),      §9545(b)(2),       and
      §9543(a)(2)(ii). Whereas [] Appellant made a strong prima
      facie showing that a miscarriage of justice occurred?

Appellant’s Brief at 5.

      Our scope and standard of review is well-settled.

      In PCRA appeals, our scope of review is limited to the findings of
      the PCRA court and the evidence on the record of the PCRA
      court’s hearing, viewed in the light most favorable to the
      prevailing party. Because most PCRA appeals involve questions
      of fact and law, we employ a mixed standard of review. We defer
      to the PCRA court’s factual findings and credibility
      determinations supported by the record. In contrast, we review
      the PCRA court’s legal conclusions de novo.

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.

2015) (internal citations and quotations omitted).

      Appellant correctly notes that, because this is his second PCRA petition

for post-conviction relief, he must meet a far more stringent standard. “A

second or any subsequent post-conviction request for relief will not be

entertained unless a strong prima facie showing is offered to demonstrate

that a miscarriage of justice may have occurred.” Commonwealth v.

Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc) (citations

omitted). In order to address issue, however, we must first determine



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whether the PCRA court correctly determined that Appellant’s second PCRA

petition was untimely filed.

        The timeliness of a post-conviction petition is jurisdictional.     See

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). A petition for

relief under the PCRA, including a second or subsequent petition, must be

filed within one year of the date the judgment is final unless the petition

alleges, and the petitioner proves, that an exception to the time for filing the

petition, set forth at 42 Pa.C.S.A. sections 9545(b)(1)(i), (ii), and (iii), is

met.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000); 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these statutory

exceptions must “be filed within 60 days of the date the claims could have
____________________________________________


2
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).




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been presented.” Gamboa-Taylor, 753 A.2d at 783; see also 42 Pa.C.S.A.

§ 9545(b)(2).

       Appellant’s judgment of sentence became final on December 9, 2011,

when the thirty-day time period for filing a direct appeal to this Court

expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant needed to file

the PCRA petition at issue by December 9, 2012, in order for it to be timely.

Appellant filed the instant petition on January 5, 2015; it is untimely unless

he 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).

       Within his brief he claims a newly-discovered evidence claim pursuant

to Section 9545(b)(1)(ii).3 As this Court recently has summarized:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned
       those facts by the exercise of due diligence. Due diligence
       demands that the petitioner take reasonable steps to protect his
       own interests. A petitioner must explain why he could not have
       learned the new fact(s) earlier with the exercise of due diligence.
       This rule is strictly enforced. Additionally, the focus of the
       exception is focused on the newly discovered facts, not a newly
       discovered or newly willing source for previously known facts.

       The timeliness exception set forth at Section 9545(b)(1)(ii) has
       often mistakenly been referred to as the “after-discovered
____________________________________________


3
   Although Appellant also refers to the section 9545(b)(1)(iii) in his
statement of his issue, he provides no argument on this exception to the
PCRA’s time bar.




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      evidence” exception. This shorthand reference was a misnomer,
      since the plain language of subsection (b)(1)(ii) does not require
      the petitioner to allege and prove a claim of “after discovered
      evidence.” Rather, as an initial jurisdictional threshold, Section
      9545(b)(1)(ii) requires a petitioner to allege and prove that
      there were facts unknown to him and that he exercised due
      diligence in discovering those facts. See 42 Pa.C.S.A.
      § 9545(b)(1)(ii). Once jurisdiction is established, a PCRA
      petitioner can present a substantive after-discovered-evidence
      claim. See Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
      eligible for relief under PCRA, petitioner must plead and prove by
      preponderance of the evidence that conviction or sentence
      resulted from, inter alia, unavailability at the time of trial of
      exculpatory evidence that has subsequently become available
      and would have changed the outcome of the trial if it had been
      introduced). In other words, the “new facts” exception at:

           Subsection (b)(1)(ii) has two components, which must
          be alleged and proved. Namely, the 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. If the
          petitioner alleges and proves these two components, then
          the PCRA court has jurisdiction over the claim under this
          subsection.

      Thus the “new facts” exception at Section 9545(b)(1)(ii) does
      not require any merits analysis of an underlying after-
      discovered-evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015) (some

internal quotation marks and citations omitted; footnote omitted; emphasis

in original).

      In dismissing Appellant’s claim, the PCRA court reasoned that

      Appellant has failed to plead and prove that the facts upon which
      his claim is based were unknown and unknowable even with the
      exercise of due diligence. In fact, Appellant fails to state exactly
      what evidence was newly discovered. He states that he “was
      made aware by the SCI-Para-Legal Department of the newly
      discovered evidence contained herein” on December 27, 2014.
      Without further clarification, this Court is unable to make a

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     searching inquiry as to the validity of Appellant’s claim. This
     Court is unable to consider if the evidence was discoverable with
     due diligence, if it was material, authentic or would cause a new
     trial to likely produce a different result. This Court, therefore,
     determined that the after-discovered exception [sic] to the
     PCRA’s timeliness requirement could not be applied to this case.

PCRA Court Opinion, 8/26/15, at 5.

     Appellant vaguely phrases his newly discovered evidence claim on

appeal. As recognized by the PCRA court, to the extent Appellant raises

claims regarding the effectiveness of counsel during the plea process,

because that claim was disposed of in Appellant’s prior PCRA proceeding, it

is considered “previously litigated” under the PCRA. See 42 Pa.C.S.A. §

9544(a). To the extent Appellant raises claims of trial court error regarding

the discretionary aspects of his sentence, such direct challenges are not

cognizable under the PCRA. See, e.g., Commonwealth ex rel. Dadario v.

Goldberg, 773 A.2d 126 (Pa. 2001); 42 Pa.C.S.A. § 9544(b). (In any event,

because Appellant’s negotiated guilty plea contained an agreed to sentence,

he cannot raise a discretionary aspect claim. See Commonwealth v.

Dalberto, 648 A.2d 16 (Pa. Super. 1994).)

     The PCRA court correctly concluded that Appellant failed to establish

any exception to the PCRA’s time-bar. The PCRA court therefore properly

dismissed Appellant’s second PCRA petition as untimely filed.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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