J-S63021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

CHARLES JACOB BERGER

                            Appellant                     No. 80 WDA 2017


            Appeal from the PCRA Order Dated December 21, 2016
               In the Court of Common Pleas of Fayette County
             Criminal Division at No(s): CP-26-CR-0000898-2008

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                            FILED DECEMBER 22, 2017

        Appellant Charles Jacob Berger appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa. C.S. §§ 9541–9546.              The PCRA court found the petition

untimely and therefore not within its jurisdiction. We affirm.

        On March 8, 2011, a jury convicted Appellant of possession with intent

to deliver a controlled substance, possession of a controlled substance, and

driving under the influence of a controlled substance.1 On March 23, 2011,

the trial court sentenced Appellant to an aggregate term of seven to

fourteen years’ incarceration.        Appellant filed a timely direct appeal.   This

Court affirmed the judgment of sentence on January 10, 2013, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal on August 14, 2013.           See Commonwealth v. Berger, No. 1134
____________________________________________
1   35 P.S. § 780-113(a)(30) and (a)(16); 75 Pa. C.S. § 3802(d)(1)(ii).
J-S63021-17


WDA 2011, 2013 WL 11283771 (Pa. Super., Jan. 10, 2013), appeal

denied, 72 A.3d 599 (Pa. 2013).

     Appellant filed his first PCRA petition on October 2, 2013. The PCRA

court denied the petition on July 7, 2015.     Appellant appealed from the

July 7, 2015 order, and this Court remanded to the PCRA court for a hearing

and retained panel jurisdiction. See Commonwealth v. Berger, No. 1173

WDA 2015, 2016 WL 4697950 (Pa. Super., June 27, 2016).          On July 17,

2016, prior to the hearing, Appellant sent the PCRA court a letter expressing

his desire to withdraw his first PCRA petition.   At the hearing, Appellant

reiterated his desire to withdraw the petition.    We held that Appellant’s

request made his appeal from the denial of his first petition moot.      See

Commonwealth v. Berger, No. 1173 WDA 2015, 2016 WL 6080495 (Pa.

Super., Oct. 17, 2016).

     On September 21, 2016, after Appellant expressed his desire to

withdraw his first PCRA petition but before this Court ruled that Appellant’s

appeal from the denial of that petition was moot, Appellant filed the instant

PCRA petition, his second. In it, he claimed: (1) the inventory search of his

vehicle was illegal; (2) his sentence was “greater than it should have been”;

and (3) there was insufficient evidence to support his conviction for

possession with intent to deliver a controlled substance.   On October 24,

2016, the PCRA court sent Appellant a Criminal Rule 907 notice of its intent

to dismiss Appellant’s petition on the basis that it was untimely and


                                    -2-
J-S63021-17


Appellant had failed to satisfy any exception to the PCRA’s time bar. 2       On

November 9, 2016, Appellant filed a motion for an extension of time to

respond to the notice.         The PCRA court granted that motion and gave

Appellant an additional thirty days (until December 15, 2016) “to respond to

[the] court’s Rule 907 notice and file [an] amended PCRA petition.” Order,

11/16/16 (excess capitalization removed). On December 8, 2016, Appellant

filed another motion for an extension of time to file an amended PCRA

petition.

       On December 21, 2016, the PCRA court issued an opinion and order

denying Appellant’s second PCRA petition as untimely. In its December 21

opinion, the PCRA court did not address Appellant’s December 8, 2016

motion. Rather, the PCRA court stated that Appellant had not filed anything

since his November 9, 2016 motion for an extension.

____________________________________________
2   Generally, a petitioner may not file a second PCRA petition while the
appeal from his first PCRA petition is pending. Commonwealth v. Lark,
746 A.2d 585, 588 (Pa. 2000). This is because the PCRA court has no
jurisdiction to act on a subsequent PCRA petition once authority over the
case has been transferred to the appellate court. Id. However, where the
petitioner abandons his first PCRA petition, he may file a second PCRA
petition before the appeal period applicable to the first PCRA petition has
expired. See Commonwealth v. Zeigler, 148 A.3d 849, 852-53 (Pa.
Super. 2016); C.J.S. Appeal and Error § 20 (“As a general rule a second
proceeding to obtain review by an appellate court cannot be taken while a
prior valid proceeding for such purpose is still pending, and if it is attempted,
the second proceeding will be dismissed, unless it has been validated by
the abandonment of the first proceeding, or the first proceeding is so
defective and ineffectual that it cannot properly be regarded as pending.”
(emphasis added)), cited in Lark, 746 A.2d at 588. Appellant abandoned
his first PCRA petition before filing his second. Therefore, this case does not
present a jurisdictional problem under Lark.

                                           -3-
J-S63021-17


         On January 11, 2017, Appellant filed a motion for reconsideration of

the PCRA court’s December 21, 2016 order, arguing that the PCRA court

erred in not ruling on his December 8 motion.           Appellant attached an

amended PCRA petition to his motion for reconsideration. In the amended

petition, he argued that the PCRA court had jurisdiction over his second

petition because (1) he was raising a claim of actual innocence; (2) the time

bar exception set forth at 42 Pa. C.S. § 9545(b)(1)(iii) applied because he

was asserting a newly-recognized constitutional right set forth in Alleyne v.

United States, 570 U.S. 99 (2013); and (3) the exception set forth at 42

Pa. C.S. § 9545(b)(1)(i) applied because his appellate and PCRA counsel

interfered with his right to properly raise meritorious issues.        Also on

January 11, 2017, Appellant filed a timely notice of appeal. On January 26,

2017, the PCRA court issued an order denying Appellant’s motion for

reconsideration and motion for an extension of time to file an amended

PCRA petition.3

         In this appeal, Appellant raises the following issues, as stated in his

brief:

         1. Whether the PCRA [c]ourt should have allowed Appellant to
         have an additional 30 days to file his respon[s]e and amended
____________________________________________
3 Appellant’s January 11, 2017 notice of appeal divested the trial court of
jurisdiction to proceed further in his case, Pa.R.A.P. 1701(a), except that the
court had until January 20, 2017 (30 days after entry of the December 21,
2016 order) to grant the portion of Appellant’s motion that sought
reconsideration, Pa.R.A.P. 1701(b)(3). Because the court’s January 26,
2017 order was entered after these dates, it was a nullity, and Appellant’s
motion was denied by operation of law upon the taking of his appeal.

                                           -4-
J-S63021-17


      PCRA Petition which would have provided the [c]ourt with reason
      and jurisdiction to entertain the second PCRA petition.

      2. Whether Appellant is Constitutionally applicable to use the
      PCRA as an avenue to p[u]rsue an Actual Innocence Claim, even
      if he did not meet any of the three statutory exceptions and if he
      was unable to, is the PCRA’s Jurisdictional time frame
      unconstitutional and not in accord with the United States
      Supreme Court[’]s rulings.

Appellant’s Brief at 5.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      Appellant argues that the PCRA court erred in holding that it lacked

jurisdiction over his second PCRA petition. In his brief, Appellant contends

that because he is raising an “actual innocence” claim, the PCRA’s time bar

does not apply.     Appellant relies on McQuiggin v. Perkins, 133 S. Ct.

1924, 1928 (2013), in which the U.S. Supreme Court held that “actual

innocence, if proved, serves as a gateway through which a petitioner may

pass” despite the expiration of the statute of limitations for filing a federal

habeas corpus petition.

      The timeliness of a PCRA petition is jurisdictional. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for
                                -5-
J-S63021-17


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 one of the three exceptions to the time

limitations for filing the petition that are set forth in Section 9545(b) of the

statute. See 42 Pa. C.S. § 9545(b). “[E]xceptions to the time bar must be

pled in the PCRA petition, and may not be raised for the first time on

appeal.”   Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007), appeal denied, 959 A.2d 927 (Pa. 2008).            The three statutory

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. § 9545(b)(1).

      Here, Appellant’s judgment of sentence became final on November 12,

2013, when Appellant’s time for seeking review in the U.S. Supreme Court

expired. See 42 Pa. C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13 (providing that

petition for writ of certiorari must be filed within 90 days of the order by the

state court of last resort denying discretionary review).    As Appellant filed

                                     -6-
J-S63021-17


the instant PCRA petition almost three years after his judgment of sentence

became final, it is patently untimely unless Appellant has satisfied his burden

of pleading and proving that one of the three enumerated exceptions

applies.

         Appellant did not timely assert any exception to the PCRA’s time bar in

the PCRA court. Although in his brief to this Court, he argues that the time

bar does not apply because he is asserting a claim of “actual innocence,” he

did not properly raise this issue before the PCRA court, and so it is waived.

See Burton, 936 A.2d at 525.

         In any event, Appellant’s contention is meritless. This Court has

previously held that McQuiggin relates only to federal habeas corpus law

and is “irrelevant to our construction of timeliness provisions set forth in the

PCRA.”      Commonwealth v. Brown, 143 A.3d 418, 420-21 (Pa. Super.

2016). In addition, the Pennsylvania Supreme Court has held that “the time

restrictions for filing PCRA petitions are constitutional[.]” Commonwealth

v. Peterkin, 722 A.2d 638, 643 n.5 (Pa. 1998). In accordance with Brown

and Peterkin, we conclude that even if Appellant had properly asserted an

actual innocence claim, this assertion would not overcome the PCRA’s time

limit.

         In view of our jurisdictional holding, we also hold that the trial court

did not commit reversible error when it dismissed Appellant’s PCRA petition

without first ruling on Appellant’s December 8, 2016 motion for an extension

of time to file an amended petition. The proposed amended petition argued
                                    -7-
J-S63021-17


that the PCRA court had jurisdiction because: (1) Appellant was raising a

claim of actual innocence; (2) he relied on the Alleyne decision to assert a

newly-recognized constitutional right under Section 9545(b)(1)(iii); and (3)

his counsel interfered with his right to raise meritorious issues, making the

exception set forth in Section 9545(b)(1)(i) applicable.        However, as we

discussed above, a claim of actual innocence does not provide an exception

to the PCRA’s time bar. In addition, the Pennsylvania Supreme Court has

held that Alleyne does not apply retroactively in the PCRA context and

therefore does not give rise to an exception under Section 9545(b)(1)(iii).

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016). And “it is

well settled that the alleged ineffectiveness of all prior counsel, including first

PCRA counsel, does not fall within the governmental interference exception”

set forth in Section 9545(b)(1)(i).     Commonwealth v. Crews, 863 A.2d

498, 503 (Pa. 2004). Therefore, the amended PCRA petition that Appellant

sought more time to file did not assert any viable theory for overcoming the

PCRA’s time bar, and any error by the PCRA court in not allowing Appellant

to have that additional time would have been harmless.

      In sum, we hold that the PCRA court correctly concluded that it lacked

jurisdiction to consider Appellant’s untimely second PCRA petition and affirm

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

      Order affirmed.




                                       -8-
J-S63021-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




                          -9-
