J-S82035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH GARCIA,

                            Appellant                 No. 882 MDA 2016


                   Appeal from the PCRA Order April 28, 2016
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000332-2001


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 08, 2016

        Appellant, Kenneth Garcia, appeals from the order which dismissed

without a hearing, after notice, his petition filed pursuant to the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA), as untimely.

Appellant claims his petition is timely under the after-discovered facts

exception because his girlfriend is now willing to be a witness as to her

version of the arrest at issue. We affirm.

        We derive the facts of this case from the PCRA court’s order giving

notice of its intent to dismiss, and our independent review of the certified

record.1

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      The underlying procedural history of this case is not in dispute, even

though Appellant now requests an arrest of judgment, and seeks to

re-characterize the reasons for his various actions, especially his guilty plea.2

      On October 25, 2001, he entered a counseled, negotiated plea

agreement by which he pleaded guilty to possession with intent to deliver,

knowing and intentional possession by a person not registered, and driving

while his operating privilege was suspended or revoked─DUI related. (See

Order, 3/21/16, at 1).           On December 5, 2001, the court imposed the

agreed-on aggregate sentence of not less than fifteen months nor more than

three years of incarceration.              As    part of the plea agreement the

Commonwealth agreed to waive a mandatory ten year sentence. Appellant

did not file a motion to withdraw his guilty plea.         Nor did he file a direct

appeal. Appellant’s judgment of sentence became final on Friday, January 4,



                       _______________________
(Footnote Continued)
1
  On June 22, 2016, the PCRA court filed an opinion in the form of an order
in this appeal, referencing its notice of intent to dismiss of March 21, 2016,
for the reasons supporting its dismissal without a hearing. See Pa.R.A.P.
1925(a); (see also Order, 3/21/16; Order 6/22/16).
2
   When a defendant enters a guilty plea, he waives his right to challenge on
direct appeal all non-jurisdictional defects except the legality of his sentence
and the validity of his plea. See Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa. Super. 2008). Furthermore, a defendant challenging the
validity of a guilty plea on direct appeal must object during the plea colloquy
or file a [motion] to withdraw the plea within ten days of sentencing, and
failure to do so results in waiver. See Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i);
Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013).



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2002.3     Accordingly, he had until January 6, 2003, to file a timely PCRA

petition.4

        Appellant was released from incarceration in 2004 and is not currently

serving a sentence related to this case.         (See id.).   Appellant is currently

serving a federal sentence for unrelated drug charges in New York (sale of

heroin), to which he pleaded guilty in 2013.           (See id.; see also PCRA

Petition, 2/12/16, at 5).

        Appellant filed the instant PCRA petition, pro se, on or about February

12, 2016, over thirteen years beyond the filing deadline.          The PCRA court

appointed counsel who continues to represent Appellant in this appeal. In

pertinent part, he alleges that his girlfriend, who was there when his vehicle

was stopped by police, but refused to testify at a trial for him, is now willing

to testify in support of his innocence.          In her proffered statement she

generally contradicts the version of facts provided by the arresting police.

(See PCRA Petition, 2/12/16, at Exhibit D).

        Based on his girlfriend’s sworn affidavit, Appellant now seeks an arrest

of judgment or remand for resentencing. He states that in the federal case
____________________________________________


3
  See 42 Pa.C.S.A. § 9545(b)(3) (“For purposes of this subchapter, a
judgment becomes 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 the
review.”).
4
    January 4, 2003 fell on a Saturday.




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he received a sentence of 198 months (sixteen and a half years) of

incarceration, based (at least in part) on his classification as a career

offender.    (See id. at 5).       He maintains that if the instant Pennsylvania

sentence were vacated, his federal sentence would be reduced to 124

months (ten years and four months). (See id.).

        On March 21, 2016, the PCRA court filed notice of intent to dismiss

pursuant to Pa.R.Crim.P.           907(1).       Counsel for Appellant responded;

Appellant also filed a pro se response. On April 28, 2016, the PCRA court

dismissed his petition without a hearing.           Counsel filed a timely notice of

appeal on behalf of Appellant.5 Counsel filed a timely statement of errors,

on June 16, 2016. See Pa.R.A.P. 1925(b). As previously noted, the PCRA

court filed an order on June 22, 2016, referencing its notice of intent to

dismiss of March 21, 2016, for the reasons supporting its dismissal without a

hearing.      See Pa.R.A.P. 1925(a); (see also Order, 3/21/16; Order

6/22/16).

        Appellant raises one question for our review on appeal:

        1. Whether [t]rial [c]ourt erred when it denied Appellant’s PCRA
        [p]etition without a hearing as Appellant’s [p]etition was not
        untimely?

(Appellant’s Brief, at 4).


____________________________________________


5
    May 28, 2016 fell on the Saturday of Memorial Day weekend.




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        Our standard of review for an order denying PCRA relief is well-settled:

We review a PCRA court’s order to determine whether it is supported by the

evidence of record and is free of legal error. Great deference is granted to

the findings of the PCRA court, and these findings will not be disturbed

unless they have no support in the certified record. See Commonwealth

v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011).

        “[I]f a PCRA [p]etition is untimely, a trial court has no jurisdiction to

entertain the petition.” Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.

Super. 2000) (citations omitted).          The PCRA provides that “[a]ny petition

under this subchapter, including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final[.]”              42

Pa.C.S.A. § 9545(b)(1).

        Here, because Appellant’s judgment of sentence became final on

January 4, 2002, he had until January 6, 2003, to file a timely PCRA

petition.6   Appellant did not file this petition until February 12, 2016, over

thirteen years later. Thus, it is untimely on its face. Accordingly, he had to

plead and prove that his claim falls under one of the exceptions at section

9545(b) to establish jurisdiction for a merit review.          See 42 Pa.C.S.A.

§ 9545(b)(1)(i)-(iii).


____________________________________________


6
    January 4, 2003 fell on a Saturday.




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       The Pennsylvania Supreme Court has repeatedly stated that it is an

appellant’s burden to plead and prove that one of the enumerated

exceptions applies. See, e.g., Commonwealth v. Abu–Jamal, 941 A.2d

1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008).

       Here, Appellant claims the benefit of the after-discovered facts

exception.    See 42 Pa.C.S.A. § 9545(b)(1)(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[.]”).7

       However, to prevail under the newly-discovered facts exception,

Appellant must plead and prove that the facts upon which the claim is

predicated were unknown to him and could not have been ascertained

earlier by the exercise of due diligence. See Commonwealth v. Bennett,

930 A.2d 1264, 1273–74 (Pa. 2007).

              The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate he did not know the facts
       upon which he based his petition and could not have learned
       those facts earlier by the exercise of due diligence.         Due
       diligence demands that the petitioner take reasonable steps to
       protect his own interests. A petitioner must explain why he
       could not have learned the new fact(s) earlier with the exercise
       of due diligence. This rule is strictly enforced. Additionally,
       the focus of this exception is on the newly discovered
       facts, not on a newly discovered or newly willing source
       for previously known facts.

____________________________________________


7
  Furthermore, a petitioner who wishes to invoke any of the above
exceptions must file the petition “within [sixty] days of the date the claim
could have been presented.” Id. at § 9545(b)(2).



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Commonwealth v. Brown, 111 A.3d 171, 176, appeal denied, 125 A.3d

1197 (Pa. 2015) (citations and internal quotation marks omitted) (emphasis

added).

     Here, Appellant’s claim fails on its own facts. Appellant concedes that

he knew of his girlfriend’s potential testimony at the time of his plea. (See

Appellant’s brief, at 10-11).   He claims that she refused to testify at that

time. (See id.). However, his girlfriend’s unwillingness to come forward in

time for a trial, or her willingness to come forward now, is not relevant to

the proof of whether Appellant knew of the facts he now presents and acted

with due diligence in presenting them. Moreover, Appellant’s long-delayed

petition also fails to comply with the sixty day rule.     See 42 Pa.C.S.A.

§ 9545(b)(2).

     On independent review we conclude that the PCRA court properly

decided that Appellant failed to prove a statutory exception to the PCRA time

bar, because the information now presented was previously known to

Appellant. The focus of the after-discovered facts exception is on the newly

discovered facts, not on a newly discovered or newly willing source for

previously known facts. See Brown, supra at 176.




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       Because Appellant’s petition is untimely, with no exception to the

statutory time-bar pleaded and proven, the PCRA court properly determined

that it was without jurisdiction to address the merits of his asserted claims.8

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2016




____________________________________________


8
  Because we conclude that the PCRA court properly determined that it was
without jurisdiction to review the merits of Appellant’s claims, we need not
address the Commonwealth’s additional issue that Appellant, who is no
longer serving the sentence at issue, would not be eligible for PCRA relief
under the “currently serving” requirement. (See Commonwealth’s Brief, at
4); see also 42 Pa.C.S.A. § 9543(a)(1)(i).



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