J-S26012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEREMY ALLEN COOL                          :
                                               :
                       Appellant               :   No. 1123 WDA 2019

              Appeal from the PCRA Order Entered June 24, 2019
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0002709-2012


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JULY 10, 2020

        Jeremy Allen Cool (Appellant) appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court determined that Appellant’s petition was untimely. The

court recited the factual and procedural history underlying this appeal as

follows:

             [Appellant] was convicted after a jury trial of eleven (11)
        counts of sexual offenses against two (2) minor victims.
        [Appellant] was sentenced on October 25, 2013 within the
        standard range of the sentencing guidelines to an aggregate term
        of 22 to 44 years of incarceration. The Pennsylvania Superior
        Court affirmed the Judgment of Sentence in an unpublished
        Memorandum Opinion on November 14, 2014. A Petition for


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     Allowance of Appeal to the Pennsylvania Supreme Court was
     denied on June 3, 2015.

           [Appellant’s] first PCRA Petition was filed on May 26, 2016
     and counsel was appointed. A [Commonwealth v. Turner, 544
     A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
     213 (Pa. Super. 1988) (en banc)] “no-merit” letter was submitted
     by counsel on September 26, 2016, and the [PCRA c]ourt issued
     the Final Order dismissing and denying the Petition on November
     18, 2016. [Appellant] took an appeal to the Superior Court from
     that Order. [Appellant] filed a Motion on April 13, 2017 requesting
     that his “Complete Case File” be turned over to him by his PCRA
     counsel, William Hathaway. The Superior Court issued an Order
     on April 27, 2017 remanding the case for 30 days to the [PCRA
     c]ourt, during which time the [PCRA] court was ensure all
     materials of record were to be provided to [Appellant] for the
     prosecution of his appeal. Further, briefing schedules were
     suspended with a new briefing schedule to be set once the record
     was returned to the Superior Court. This [PCRA c]ourt ordered
     Attorney Hathaway to forward his complete case file to [Appellant]
     on or before May 30, 2017. Attorney Hathaway notified the
     [c]ourt by letter dated May 16, 2017 that he had forwarded his
     complete file to [Appellant]. [Appellant], on May 24, 2017, filed
     a Motion with the [c]ourt claiming that the materials he had
     received from Attorney Hathaway were not all of the materials of
     record necessary for him to prosecute his appeal. [Appellant]
     wanted the [c]ourt to compel Attorney Hathaway to locate and
     turn over his complete case file. The Motion was denied on June
     19, 2017. [Appellant], prior to that ruling, filed a Motion with the
     Superior Court on June 1, 2017 to “Compel PCRA Counsel to
     Locate and Turn Over the Petitioner’s Complete Case File.” The
     Superior Court denied that Motion but said [Appellant] may argue
     lack of documentation in his pending appeal.

            The Superior Court ruled on the appeal on December 22,
     2017. The Superior Court remanded the case to the lower court
     sua sponte only as to the “consideration of the applicability of
     [Commonwealth v.] Muniz [164 A.3d 1189 (Pa. 2017)] to the
     Petitioner’s sentence.” Commonwealth v. Jeremy Allen Cool,
     No. 1926 WDA 2016 p.6. [Appellant] raised a myriad of issues on
     appeal of his PCRA as to ineffective assistance of counsel
     (including PCRA counsel), all of which were specifically rejected by
     the Superior Court. The Superior Court, in its December 22, 2017
     Opinion, affirmed the “PCRA court’s order with respect to the other

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      issues raised by Appellant in his PCRA petition.” Commonwealth
      v. Jeremy Allen Cool, No. 1926 WDA 2016, p.7. [Appellant] had
      argued PCRA counsel’s ineffectiveness in his appeal on the basis
      of the failure to receive his complete case file prejudiced him from
      being able to raise all of the issues of ineffectiveness of counsel.
      The Superior Court ruled that PCRA counsel’s ineffectiveness
      cannot be raised for the first time on appeal, but must be raised
      in a response to the lower court’s Rule 907 Notice to Dismiss.
      [Appellant] did not file such a response and so the Superior Court
      found the claim unreviewable. Id., pp.13-14. A Petition for
      Allowance of Appeal to the Supreme Court was not filed.

            The PCRA Petition in the instant appeal is [Appellant’s]
      second, and was filed March 2[8], 2019. The [PCRA c]ourt filed
      its Opinion and Notice of Intent to Dismiss PCRA Without Hearing
      Pursuant to PA.R.Crim.P. 907(1) on May 14, 2019, and issued the
      Final Order June 24, 2019.

PCRA Court Opinion, 10/9/19, at 1-3 (footnote omitted).

      On July 22, 2019, Appellant filed a timely pro se notice of appeal. Both

Appellant and the PCRA court have complied with Pennsylvania Rule of

Appellate Procedure 1925. On appeal, Appellant presents a single question

for review:

      I.      DID THE PCRA COURT ABUSE ITS DISCRETION WHEN IT
              FAILED TO COMPLY WITH THE SUPERIOR COURT’S ORDER
              MANDATING “PCRA COURT SHALL ENSURE THAT THE
              APPELLANT IS PROVIDED WITH ALL MATERIALS OF
              RECORD NECESSARY FOR THE PROSECUTION OF THIS
              INSTANT APPEAL”?

Appellant’s Brief at 4.

      Appellant recognizes that in reviewing the denial of a PCRA petition, our

review is limited to examining whether the PCRA court’s findings are supported

by the record and free of legal error. See Appellant’s Brief at 2; see also

Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011). It is well settled


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that we view the findings of the PCRA court and the evidence of record in the

light most favorable to the prevailing party. Id. “The PCRA court’s credibility

determinations, when supported by the record, are binding on this Court;

however, we apply a de novo standard of review to the PCRA court’s legal

conclusions.” See Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

      With regard to the timeliness of his second petition, Appellant states

only that it “was timely filed and this issue was properly raised and preserved

during the Appellant’s first PCRA petition.” Appellant’s Brief at 11. Appellant

fails to recognize that a petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment of sentence became final, unless

one of the three statutory exceptions applies:

      (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). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented.    42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the


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petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007). Thus,

we lack jurisdiction unless Appellant has pled and proven one of the three

timeliness exceptions of Section 9545(b)(1). See id.

      It is well settled that no court has jurisdiction to hear an untimely PCRA

petition.   See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.

2003). Here, Appellant does not claim or argue an exception to the PCRA

time-bar prescribed in 42 Pa.C.S.A. § 9545(b)(1). In his petition, where the

typed text reads: “ALTHOUGH THIS PCRA PETITION IS BEING FILED MORE

THAN ONE YEAR AFTER THE DATE OF FINAL JUDGMENT, I HEREBY ALLEGE

AND CAN PROVE THAT THE FOLLOWING EXCEPTION AS BEEN MET: . . . ”; in

each of the successive three statutory sections listed, “N/A” is handwritten,

presumably by Appellant, to indicate that the statutory exceptions are not

applicable. See PCRA Petition, 3/28/19, at 3. We therefore agree with the

PCRA court that Appellant’s second petition, filed March 28, 2019, is untimely,

because Appellant’s judgment of sentence became final on June 3, 2015, one

year after the Supreme Court denied his petition for allowance of appeal from

this Court’s decision affirming his judgment of sentence.     See PCRA Court

Opinion, 10/9/19, at 1, 4; Commonwealth v. Cool, No. 1898 WDA 2013 (Pa.




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Super. Nov. 14, 2014) (unpublished memorandum), appeal denied, 582

WAL 2014 (Pa. filed June 3, 2015).

      Moreover, we agree with the PCRA court that even if the underlying

petition was timely, the “issue raised by [Appellant in his second PCRA

petition] was raised in his appeal of the denial of his first PCRA petition.” PCRA

Court Opinion, 10/9/19, at 4 n.2.       Appellant appealed the issue without

success, and did not seek allowance of appeal with the Supreme Court.

Commonwealth v. Cool, No. 1926 WDA 2016 (Pa. Super. Dec. 22, 2017)

(unpublished memorandum).

      For the above reasons, we affirm the dismissal of Appellant’s second

PCRA petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2020




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