J-S69034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JOHN PALACH,

                        Appellant                   No. 496 EDA 2015


              Appeal from the PCRA Order of January 13, 2015
           In the Court of Common Pleas of Northampton County
 Criminal Division at No(s): CP-48-CR-0002157-2005, CP-48-CR-0002158-
       2005, CP-48-CR-0002159-2005 and CP-48-CR-0002160-2005


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 14, 2015

     Appellant, John Palach, appeals, pro se, from the order entered on

January 13, 2015, dismissing his second petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court ably summarized the facts and procedural posture

underlying this appeal. As the PCRA court explained:

        Following a jury trial [in October] 2005, [Appellant] was
        convicted of conspiracy to commit burglary, conspiracy to
        commit receiving stolen property, conspiracy to commit
        theft by unlawful taking, receiving stolen property, theft by
        unlawful taking, burglary, criminal trespass, conspiracy to
        commit criminal trespass, and use or possession of drug
        paraphernalia[,] for his involvement in a string of seven
        home burglaries. [Appellant] was subsequently sentenced
        on February 22, 2006, to an aggregate period of 31 ½ to 63
        years’ imprisonment.      [Appellant] filed [a] timely post-
        sentence motion[,] wherein he alleged, among other
        things[,] that[] his sentence was excessive.
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       On August 2, 2006, the [trial court] . . . grant[ed]
       [Appellant’s] motion in part and den[ied] it in part.
       Specifically[,] the [trial] court reduced [Appellant’s]
       aggregate sentence to 12 to 24 years’ imprisonment in light
       of the post-sentence revelation that [Appellant’s] co-
       defendant, Lloyd Philhower, who was the undisputed
       ringleader of the burglaries, only received an aggregate
       term of [ten] to 20 years’ imprisonment for his participation
       in all [of] the burglaries pursuant to a negotiated guilty
       plea. In all other respects, [Appellant’s] post-sentence
       motion was denied.

       [Appellant] filed a direct appeal to the Superior Court of
       Pennsylvania[,] which affirmed [his] judgment of sentence
       on November 21, 2007. See Commonwealth v. Palach,
       [944    A.2d    797   (Pa.   Super.   2007)    (unpublished
       memorandum) at 1-9, appeal denied, 982 A.2d 65 (Pa.
       2009)]. [Appellant] did not [immediately] file a petition for
       allowance of appeal with the [Pennsylvania] Supreme Court.
       ...

       On July 14, 2008, [Appellant] filed a number of pro se
       documents, which were ultimately treated as a PCRA
       petition.    On February 18, 2009, [the PCRA] court
       reinstated [Appellant’s] [] right[] to [file a] petition for
       allowance of appeal with the [Pennsylvania] Supreme Court.
       The Supreme Court denied [Appellant’s petition for
       allowance of appeal] on August 4, 2009. . . . [Appellant did
       not file a petition for a writ of certiorari with the United
       States Supreme Court] and, on November 3, 2009,
       [Appellant’s] judgment of sentence became final. . . .

       [On] January 21, 2010, [Appellant] filed a timely pro se
       PCRA petition.   Counsel was appointed[.      However, on
       October 21, 2010, the PCRA court dismissed Appellant’s
       PCRA petition and, on March 9, 2012, the Superior Court
       affirmed the PCRA court’s order.      Commonwealth v.
       Palach, 47 A.3d 1238 (Pa. Super. 2012) (unpublished
       memorandum) at 1-8. Appellant did not file a petition for
       allowance of appeal with the Pennsylvania Supreme Court].

       [Appellant] filed the instant PCRA petition, his second, . . .
       on July 25, 2012. . . .

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PCRA    Court    Opinion,    6/9/15,   at    1-4   (some    internal   citations   and

capitalization omitted).

       Within his second PCRA petition, Appellant claimed that he was

entitled to an “absolute discharge” because he was tried by a court that did

not have subject matter jurisdiction.         Appellant’s “Petition for a Writ of

Habeas Corpus Seeking Absolute Discharge,” 7/25/12, at 1-2.                 Appellant

later filed an amended second PCRA petition, wherein Appellant raised a

boilerplate claim that all prior counsel had provided him with ineffective

assistance.     See Appellant’s Response and Opposition to Oder of Court

Dated August 9, 2012, 8/31/12, at 1-2.

       Following the appointment and withdrawal of two separate attorneys,

the   PCRA    court   appointed    another    attorney     to   represent   Appellant.

However, on November 18, 2014, appointed counsel filed a “no merit” letter

and a petition to withdraw as counsel, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On December 15, 2014, the PCRA court

granted counsel’s petition to withdraw and provided Appellant with notice

that it intended to dismiss Appellant’s PCRA petition in 20 days, without

holding a hearing.          PCRA Court Order, 12/15/14, at 1; see also

Pa.R.Crim.P. 907(1).        The PCRA court finally dismissed Appellant’s PCRA

petition on January 13, 2015.




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      After Appellant filed his timely, pro se notice of appeal, the PCRA court

ordered Appellant to file and serve a concise statement of errors complained

of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant, however, did not file a Rule 1925(b) statement.

      We conclude that the PCRA court properly dismissed Appellant’s

patently untimely, serial PCRA petition.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.    This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).           Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we are

able to consider any of the underlying claims. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.            See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a

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        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the case at bar, Appellant’s judgment of sentence became final on

November 3, 2009, when his time for filing a petition for writ of certiorari

with the United States Supreme Court expired.       See U.S.Sup.Ct.R. 13(1).

As Appellant did not file his current petition until July 25, 2012, the current

petition is manifestly untimely and the burden thus fell upon Appellant to

plead and prove that one of the enumerated exceptions to the one-year

time-bar   applied   to   his   case.    See   42   Pa.C.S.A.   §   9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

      In the case at bar, Appellant did not properly plead any exception to

the PCRA’s one-year time-bar. Further, to the extent Appellant attempted to

raise a boilerplate claim that he was entitled to relief because his first PCRA

counsel was ineffective, we note that Appellant filed his current PCRA

petition more than 100 days after we affirmed the PCRA court’s order that

dismissed Appellant’s first PCRA petition.     Thus, to the extent Appellant’s

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current ineffective assistance of counsel claim constitutes “newly discovered

facts,” the claim fails because it was not brought “within 60 days of the date

the claim could have been presented.” See 42 Pa.C.S.A. § 9545(b)(2).

     We conclude that Appellant’s petition is time-barred and that our

“courts are without jurisdiction to offer [Appellant] any form of relief.”

Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).

Therefore, we affirm the PCRA court’s order dismissing Appellant’s second

PCRA petition without a hearing.

     Order affirmed. Jurisdiction relinquished.

     Ford Elliott, P.J.E., joins.

     Gantman, P.J., concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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