J-S61023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT COMRIE

                            Appellant               No. 1942 WDA 2015


                 Appeal from the PCRA Order October 27, 2015
               In the Court of Common Pleas of Clearfield County
              Criminal Division at No(s): CP-17-CR-0000134-2002


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 29, 2016

       Robert Comrie appeals, pro se, from the order1 entered in the Court of

Common Pleas of Clearfield County, dismissing his petition filed pursuant to

the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). Upon

review, we affirm.

       On December 17, 2004, after entering a plea of guilty to one count of

possession with intent to deliver, Comrie was sentenced to 2 to 4 years’

incarceration.     Comrie did not appeal his judgment of sentence.     In the

ensuing years, Comrie filed multiple petitions, which the trial court properly

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1
  Comrie’s notice of appeal purports to appeal from an order dated
November 23, 2015. However, no such order exists. As Comrie drafted his
notice of appeal on November 23, 2015, we presume the date was simply
entered in error. It is clear that the order he appeals from is the one dated
October 27, 2015, and we have amended our caption accordingly.
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treated as filed pursuant to the PCRA. In one such petition, Comrie raised

an issue regarding time credit, which the Commonwealth agreed could be

addressed by the PCRA court.           After a status conference, the PCRA court

entered an order, stipulated to by the Commonwealth, granting relief in the

form of credit for time served. Comrie appealed that order and this Court

concluded that the PCRA court had lacked subject matter jurisdiction over

Comrie’s PCRA petition and, accordingly, vacated the grant of relief.

Comrie’s other PCRA filings were all dismissed.

       Comrie initiated the instant PCRA proceeding with a filing on June 12,

2015. He followed that petition with another on July 6, 2015. On July 15,

2015, the PCRA court issued a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907. In response, Comrie filed a “supplemental” PCRA petition

on September 14, 2015. On October 27, 2015, the PCRA court entered an

order dismissing all of Comrie’s filings.2 This timely appeal3 follows, in which

Comrie again claims that he is entitled to credit for time served.
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2
   Comrie followed his June 12, 2015 filing with a torrent of additional pro se
filings, including the “supplemental” PCRA petitions, writs of habeas corpus
ad subjiciendum, and a “Nunc Pro Tunc Motion For Clarification of
Opinion/Order.” All were dismissed by the order currently being appealed.
However, in his notice of appeal, Comrie notes that he is only challenging
the dismissal of his June 12, 2015 PCRA petition and the supplements filed
thereto on July 6, 2015 and September 14, 2015.
3
 Comrie’s notice of appeal was stamped as filed with the prothonotary on
November 30, 2015. However, the notice of appeal was dated November
23, 2015, and we will consider it to be timely filed pursuant to the prisoner
mailbox rule. See Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997).



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      Our standard and scope of review regarding the denial of a PCRA

petition is well-settled.     We review the PCRA court’s findings of fact to

determine whether they are supported by the record, and review its

conclusions of law to determine whether they are free from legal error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the trial

level. Id.

      Instantly, the PCRA court dismissed Comrie’s petition as untimely. A

PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

      Here, Comrie’s judgment of sentence became final no later than

January 17, 2005, upon the expiration of the thirty-day period for filing an

appeal to this Court.       See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Thus, he had one year from that date, or until January 17, 2006, to file a

timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Comrie did not file the

instant petition until June 12, 2015, more than 10 years after his judgment

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of sentence became final. Accordingly, the PCRA court had no jurisdiction to

entertain Comrie’s petition unless he pleaded and offered to prove one of the

three statutory exceptions4 to the time bar. Comrie attempts to invoke the

“newly-discovered       fact”   timeliness     exception.   See   42   Pa.C.S.A.   §

9545(b)(1)(ii).      Specifically, Comrie claims that, on May 15, 2015, he

became aware of a bench warrant lodged for his re-arrest by the authorities

in Clearfield County for state time he still owed.

        To obtain relief under the PCRA, a petitioner must demonstrate that

the new facts are both exculpatory and would have changed the outcome of

the trial if they had been introduced. Commonwealth v. Yarris, 731 A.2d

581, 591 (Pa. 1999), citing 42 Pa.C.S. § 9543(a)(2)(vi).           Here, the facts

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4
    The statutory exceptions are as follows:

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

42 Pa.C.S.A. § 9545(b)(1).




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upon which Comrie predicates his claim are not exculpatory. In fact, they do

not relate to his underlying conviction at all.   Rather, the facts concern a

claim for time credit that Comrie has been pursuing for years.       See, e.g.,

Commonwealth v. Comrie, No. 1232 WDA 2011 (Pa. Super. filed 5/31/21)

(reversing PCRA court’s grant of relief in form of credit for time served).

       Because Comrie failed to plead and prove any exception to the

jurisdictional time bar, the PCRA court properly dismissed his petition as

untimely filed.

       Order affirmed. Request for remand denied.5

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2016




____________________________________________


5
  Comrie filed a document entitled “Request For A Remand To The Trial Court
To Consider Application For New Trial Based On After-Discovered Evidence
Pursuant To Pa.R.Cr[im].P. 720(c).” In this document, Comrie claims that a
transcript of a hearing held on September 10, 2013, is after-discovered,
exculpatory evidence that proves he served his state sentence between
January 19, 2002 and December 22, 2003. This is simply another rehashing
of the time-credit claims contained in the instant PCRA petition and previous
petitions. Accordingly, we decline to grant relief.



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