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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
SHAUN PATRICK AUSTIN,                    :          No. 1876 EDA 2018
                                         :
                        Appellant        :


              Appeal from the PCRA Order Entered May 8, 2018,
            in the Court of Common Pleas of Northampton County
               Criminal Division at No. CP-48-CR-0002008-2008


BEFORE: SHOGAN, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 08, 2019

      Shaun Patrick Austin appeals pro se from the May 8, 2018 order entered

in the Court of Common Pleas of Northampton County denying, and dismissing

without a hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      A previous panel of this court summarized the procedural history of this

case as follows:

            On September 18, 2009, a jury convicted [a]ppellant
            of     96    counts      of   possession     of    child
            pornography.[Footnote 1] On December 22, 2009,
            the trial court sentenced [a]ppellant to an aggregate
            72 to 192 years’ incarceration. See Commonwealth
            v. Austin, 66 A.3d 798, 801 (Pa. Super. [2013]),
            aff’d, 77 A.3d 1258 (Pa. 2013) (table). On direct
            appeal, this [c]ourt affirmed [a]ppellant’s convictions,
            but held that his sentence was excessive, and
            remanded for resentencing. On January 13, 2012, the
            trial court held a new sentencing hearing, after which
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            it imposed an aggregate sentence of 35 to 70 years’
            incarceration. Appellant filed another direct appeal,
            and we affirmed the judgment of sentence on May 13,
            2013. Austin, 66 A.3d at 810. The Pennsylvania
            Supreme Court denied [a]ppellant’s petition for
            allowance of appeal on October 22, 2013. Austin, 77
            A.3d 1258.

                  [Footnote 1] 18 Pa.C.S.[A.] § 6312(d).

            On February 28, 2014, [a]ppellant filed a timely PCRA
            petition. Appointed counsel filed an amended PCRA
            petition, and, after conducting hearings, the PCRA
            court denied relief on April 10, 2015. Appellant filed
            a timely appeal, which ultimately was discontinued
            upon     praecipe    of   [a]ppellant’s  counsel    on
            December 10, 2015. In the meantime, on May 8,
            2015, [a]ppellant filed [a pro se nunc pro tunc PCRA
            petition]. The PCRA court explained:

                  On May 8, 2015, [appellant] filed a pro se
                  document entitled “Pro Se Nunc Pro Tunc
                  PCRA.” Therein, [appellant] memorialized
                  his    intention  to    discontinue    the
                  representation of his prior PCRA counsel,
                  and he sought to reinstate a PCRA petition
                  filed on February 28, 2014, as amended
                  to include [myriad other issues].

            PCRA Ct. Op., 6/17/16, at 1. Treating this filing as a
            serial PCRA petition, the PCRA court concluded that it
            was untimely and that [a]ppellant did not raise or
            prove a time-bar exception.

Commonwealth v. Austin, No. 886 EDA 2016, unpublished memorandum

at 1-2 (Pa.Super. filed December 21, 2016). Appellant filed a timely pro se

notice of appeal, and this court affirmed the PCRA court’s denial of appellant’s

PCRA petition. Id. No further appeal was taken.




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      On February 13, 2018, appellant filed a pro se “Writ of Habeas Corpus

Ad Subjiciendum.” Pursuant to 42 Pa.C.S.A. § 9542, the PCRA court treated

appellant’s filing as a PCRA petition. (PCRA court order, 4/10/18.)

      On April 11, 2018, the PCRA court notified appellant pursuant to

Pa.R.Crim.P. 907(1) of its intent to dismiss the PCRA petition as untimely.

Appellant did not respond. On May 8, 2018, the PCRA court dismissed the

PCRA petition. (PCRA court order, 5/8/18.)

      On June 1, 2018, appellant filed a timely pro se notice of appeal. The

PCRA court directed appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Appellant timely complied. The PCRA court

subsequently filed its Rule 1925(a) statement in which it incorporated its

orders of April 10, 2018 and May 8, 2018, as setting forth the reasons for its

dismissal of appellant’s PCRA petition.

      Appellant raises the following issues for our review:

            1.    Is [h]abeas [c]orpus the proper venue to
                  challenge   abandonment/ineffectiveness of
                  counsel, when first PCRA petition was not
                  decided before the time bar[?]

            2.    Should the instant petition be treated as [a]
                  continuation of [the] first petition, when issues
                  in [the] first petition where abandoned, and
                  [the] instant petition is asking that abandoned
                  issues be addressed[?]




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Appellant’s brief at 3.1

      With respect to appellant’s first issue, the PCRA court properly treated

appellant’s petition for writ of habeas corpus as a serial PCRA petition

because the PCRA is the sole means by which a defendant may obtain

collateral relief and subsumes the remedy of habeas corpus with respect to

remedies offered under the PCRA. 42 Pa.C.S.A. § 9542 (providing that the

PCRA “shall be the sole means of obtaining collateral relief and encompasses

all other common law and statutory remedies for the same purpose . . . ,

including habeas corpus”); see also Commonwealth v. Descardes, 136

A.3d 493, 497-498 (Pa. 2016) (same; citing 42 Pa.C.S.A. § 9542);

42 Pa.C.S.A. § 6503(b) (“[H]abeas corpus shall not be available if a remedy

may be had by [the PCRA].”); 18 Pa.C.S.A. § 9543(a)(2)(ii) (the PCRA

specifically provides relief for claims of ineffectiveness of counsel). As a result,

appellant’s first claim necessarily fails.

      Appellant next claims that his current untimely PCRA petition should be

treated as an extension of his first timely PCRA petition. In order to be timely

filed, a PCRA petition, including second and subsequent petitions, must be

filed within one year of when an appellant’s judgment of sentence becomes

final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion

of direct review, including discretionary review in the Supreme Court of the


1 This court notes that although appellant raised a multitude of issues in his
Rule 1925(b) statement, appellant has abandoned all but the two issues
identified above on appeal.


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United States and the Supreme Court of Pennsylvania, or at the expiration of

the time for seeking the review.”          42 Pa.C.S.A. § 9545(b)(3).          The

Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound. See Commonwealth v. Cruz, 852 A.2d 287, 292

(Pa. 2004). In addition, our supreme court has instructed that the timeliness

of a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. See Commonwealth v. Callahan, 101 A.3d

118, 120-121 (Pa.Super. 2014); see also Commonwealth v. Wharton, 886

A.2d 1120 (Pa. 2005).

      Here, the trial court sentenced appellant on January 13, 2012.          This

court affirmed the judgment of sentence on May 13, 2013. Our supreme court

denied review on October 22, 2013.        Appellant did not seek discretionary

review with the Supreme Court of the United States.                Consequently,

appellant’s judgment of sentence became final on January 21, 2014, 90 days

after the expiration of the time for seeking discretionary review with the

Supreme Court of the United States.2 See U.S. Sup. Ct. R. 13(1) (“A petition

for a writ of certiorari seeking review of a judgment of a lower state court

that is subject to discretionary review by the state court of last resort is timely

when it is filed with the Clerk within 90 days after entry of the order denying




2 We observe that the 90th day upon which to file an appeal fell on the birthday
of Martin Luther King, Jr., a federal holiday (see 5 U.S.C. § 6103(a)), so the
judgment of sentence became final on the following day. See U.S. Sup. Ct.
R. 30(1).


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discretionary review.”); see also 42 Pa.C.S.A. § 9545(b)(3). Appellant filed

his PCRA petition on February 13, 2018, more than four years after the

judgment of sentence became final. Therefore, appellant’s PCRA petition is

patently untimely.

      If a PCRA petition is untimely filed, the jurisdictional time-bar can only

be overcome if appellant alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). See Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017).           The three narrow statutory

exceptions to the one-year time-bar are as follows:       “(1) interference by

government officials in the presentation of the claim; (2) newly discovered

facts; and (3) an after-recognized constitutional right.” Commonwealth v.

Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012), citing 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii).

      Here, in an attempt to circumvent the jurisdictional time-bar, appellant

claims that his current untimely PCRA petition is an extension of his previously

filed timely PCRA petition. (Appellant’s brief at 18-23.) Our supreme court

has rejected the “extension theory exception” that appellant attempts to

invoke. See Commonwealth v. Robinson, 837 A.2d. 1157, 1158, 1162 (Pa.

2003) (“Once a PCRA petition has been decided and the ruling on it has

become final, there is nothing for a subsequent petition or pleading to

‘extend.’”).   “The PCRA confers no authority upon this [c]ourt to fashion

ad hoc equitable exceptions to the PCRA time-bar in addition to those



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exceptions expressly delineated in the Act.” Commonwealth v. Eller, 807

A.2d 838, 845 (Pa. 2002). Therefore, this claim fails.

     A reading of appellant’s PCRA petition demonstrates that appellant has

failed to plead and prove one of the three statutory exceptions to the PCRA

time-bar.   Therefore, the PCRA court lacked jurisdiction over the PCRA

petition, and we may not review it on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/19




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