J-S79011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                              Appellee

                        v.

TIMOTHY B. KAUFFMAN,

                              Appellant                          No. 858 EDA 2014


          Appeal from the PCRA Order entered February 28, 2014,
             in the Court of Common Pleas of Chester County,
           Criminal Division, at No(s): CP-15-CR-0002040-2007


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                                  FILED DECEMBER 05, 2014

      Timothy B. Kauffman (“Appellant”) appeals pro se from the order

denying his untimely petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history are as follows: On January

3, 2008, Appellant entered a negotiated plea to two counts of involuntary

deviate sexual intercourse and six counts of corrupting the morals of minors.

On July 15, 2008, the trial court sentenced him in accordance to the plea

agreement     to   an        aggregate    sentence   of    ten    to   twenty   years   of

imprisonment, followed by a five-year probationary term. Appellant did not

file a direct appeal to this Court.




*Retired Senior Judge assigned to the Superior Court.
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      On July 13, 2009, Appellant filed a pro se PCRA petition. On July 15,

2009, the PCRA court appointed counsel.              On September 15, 2009, PCRA

counsel filed a “no-merit” letter and petition to withdraw 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

November 2, 2009, the PCRA court filed Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s PCRA petition without a hearing. Appellant filed a timely

response.    By order of court entered December 15, 2009, the PCRA court

dismissed Appellant’s PCRA petition and permitted PCRA counsel to

withdraw.     Although Appellant filed an appeal to this Court, we later

dismissed it for failure to file a brief.

      On January 23, 2014, Appellant filed the pro se PCRA at issue.                     On

February 7, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s petition as untimely. Appellant filed a timely response.

By order entered February 28, 2014, the PCRA court dismissed Appellant’s

second PCRA petition. 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,

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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).

      Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that Appellant’s

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 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

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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

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.”).

      Because Appellant did not file a direct appeal to this Court following

the imposition of his sentence, his judgment of sentence became final on

August 14, 2008, thirty days after the time for filing a direct appeal to this

Court had expired. 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to

file his petition by August 14, 2009, in order for it to be timely. As Appellant

filed the instant petition on January 23, 2014, 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).

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar. Indeed, Appellant does not even acknowledge the untimeliness of

his latest PCRA petition in his appellate brief.   Although he argued certain

timeliness exceptions in his petition and his Pa.R.A.P. 1925(b) statement, he

does not challenge the PCRA court’s treatment of them in its Pa.R.A.P.


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1925(a) opinion. Thus, the PCRA court correctly determined that it lacked

jurisdiction to consider Appellant’s PCRA petition.   We therefore affirm the

PCRA court’s order denying Appellant post-conviction relief.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2014




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