J-S12027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLAYTON RAYMOND AXE

                            Appellant                No. 1338 MDA 2016


                   Appeal from the PCRA Order July 13, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0001975-2011


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                FILED APRIL 10, 2017

        Clayton Raymond Axe appeals pro se from the order entered July 13,

2016, in the Court of Common Pleas of York County, dismissing his second

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541–46.         A jury convicted Axe of criminal attempt – sexual

assault, and indecent exposure.1 Axe was sentenced to an aggregate term

of 54 months to 10 years’ imprisonment, and was required to register as a

sexual offender with the Pennsylvania State Police for a minimum of 10

years. In this appeal, Axe raises numerous issues, including ineffectiveness

of counsel, and the timeliness of the instant petition. See Axe’s Brief at 4–

5. Based upon the following, we affirm.

____________________________________________


1
    18 Pa.C.S. §§ 903 and 3127(a).
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       The facts underlying Axe’s arrest and convictions are summarized in

the prior memorandum decisions of this Court in this case, and we need not

reiterate them herein. On April 12, 2012, the trial court sentenced Axe as

stated above.      This Court affirmed the judgment of sentence on June 27,

2013, and the Pennsylvania Supreme Court denied allowance of appeal on

January 6, 2014. Commonwealth v. Axe, 82 A.3d 473 (Pa. Super. 2013)

(unpublished memorandum) (affirming judgment of sentence), appeal

denied, 84 A.3d 1061 (2014).

       Axe’s first PCRA petition was filed on December 15, 2014, raising two

claims of ineffectiveness of trial counsel. Following an evidentiary hearing,

the PCRA court dismissed Axe’s first petition, by order entered on March 4,

2014. On December 11, 2015, this Court affirmed the denial of PCRA relief

and, on April 12, 2016, the Pennsylvania Supreme Court denied allowance of

appeal.    See Commonwealth v. Axe, 135 A.3d 656 (Pa. Super. 2015)

(affirming denial of PCRA relief), appeal denied, ___ A.3d ___ (Pa. 2016).

       Axe filed this second PCRA petition on June 6, 2016. The PCRA court

issued Pa.R.Crim.P. 907 notice on June 16, 2016, and Axe filed a response

to the Rule 907 notice on July 11, 2016.         The PCRA court dismissed the

petition on July 14, 2016. This appeal timely followed.2

       Our standard of review is well established:
____________________________________________


2
 Axe timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) concise statement.



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     “In reviewing the denial of PCRA relief, we examine whether the
     PCRA court’s determination ‘is supported by the record and free
     of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
     A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
     Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016).               At

the outset, we address the timeliness of Axe’s second PCRA petition, which is

the seventh and final issue raised in this appeal. See Axe’s Brief at 38–41.

     “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

PCRA petition must be filed within one year of the date the judgment

becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “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.”          42

Pa.C.S. § 9545(b)(3).

     There are three statutory exceptions to the PCRA’s time bar.

Specifically, to overcome the timeliness requirements, a petitioner must

plead and prove one of the following exceptions:

     (i) the failure to raise a claim previously was the result of
     interference by government officials with the presentation of the
     claim in violation of the Constitution or the law of this
     Commonwealth or the Constitution or law 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




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      (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)(i)-(iii). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Here, Axe’s judgment of sentence became final on April 7, 2014, 90

days after the Pennsylvania Supreme Court denied Axe’s petition for

allowance of appeal on January 6, 2014, when the time for filing a petition

for writ of certiorari with the United States Supreme Court expired.      See

U.S.Sup.Ct.R. 13; 42 Pa.C.S. § 9545(b)(3); see also Axe, supra, 135 A.3d

656 (unpublished memorandum, at n.1). As such, the present petition, filed

in 2016 — over two years after the judgment became final — is patently

untimely.

      Axe asserts he had 60 days to file the present PCRA petition, following

the Pennsylvania Supreme Court’s order on April 12, 2016, denying

allowance of appeal on his first PCRA petition, and that this second petition

— filed June 6, 2016 — was filed within the 60 days afforded under 42

Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Lark, 746 A.2d 585, 588

(2000).

      In Lark, the Pennsylvania Supreme Court explained the procedure for

filing a PCRA petition when a pending PCRA petition is resolved:


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      [W]hen an appellant’s PCRA appeal is pending before a court, a
      subsequent PCRA petition cannot be filed until the resolution of
      review of the pending PCRA petition by the highest state court in
      which review is sought, or upon the expiration of the time for
      seeking such review. If the subsequent petition is not filed
      within one year of the date when the judgment became
      final, then the petitioner must plead and prove that one of
      the three exceptions to the time bar under 42 Pa.C.S. §
      9545(b)(1) applies. The subsequent petition must also be
      filed within sixty days of the date of the order which
      finally resolves the previous PCRA petition, because this is
      the first “date the claim could have been presented.” 42 Pa.C.S.
      § 9545(b)(2).

Id. at 588 (emphasis supplied).

      Although Axe’s present petition meets the 60-day requirement, in

accordance with Lark, our review confirms that the petition fails to satisfy

any PCRA exception to overcome the time bar.              See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).   See Lark, supra.    Specifically, Axe’s reliance on the

statutory exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii) is misplaced.

      Section 9545(b)(1)(ii) provides an exception to the PCRA’s one-year

time restriction where “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.”   42 Pa.C.S. § 9545(b)(1)(ii). Axe asserts his

second petition is “the first opportunity for [Axe] to file ineffectiveness

claims against PCRA counsel … after the Pennsylvania Supreme Court denied

[a]llowance of [a]ppeal on April 12, 2016[,] in the ‘First’ PCRA challenge.”

Axe’s Brief at 39.        However, Axe’s argument that PCRA counsel’s




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ineffectiveness constitutes a newly discovered fact for purposes of Section

9545(b)(1)(ii), has been rejected by the Pennsylvania Supreme Court.

      In Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.

2000), the Pennsylvania Supreme Court explained:

      Appellant’s attempt to interweave concepts of ineffective
      assistance of counsel and after-discovered evidence as a means
      of establishing jurisdiction is unconvincing. Although Appellant
      formulates his assertions here in terms of the discovery of new
      facts not previously known to him, it is readily apparent that
      Appellant’s argument, at its essence, is a claim for ineffective
      assistance of PCRA counsel layered on top of trial counsel’s
      ineffectiveness. This Court has stated previously that a claim for
      ineffective assistance of counsel does not save an otherwise
      untimely petition for review on the merits. Nevertheless, hoping
      to gain the benefit of the exception, Appellant fashions the
      argument that the basic facts concerning PCRA counsel’s
      representation, which allegedly highlight that PCRA counsel was
      ineffective, were not known to Appellant until current counsel
      reviewed the file. However, subsequent counsel’s review of
      previous counsel’s representation and a conclusion that previous
      counsel was ineffective is not a newly discovered “fact” entitling
      Appellant to the benefit of the exception for after-discovered
      evidence. In sum, a conclusion that previous counsel was
      ineffective is not the type of after-discovered evidence
      encompassed by the exception.

Id. at 785 (citations omitted).

      Furthermore, in Robinson, supra, the Pennsylvania Supreme Court

rejected the appellant’s argument for “an equitable exception to the PCRA’s

one-year filing restriction where …. a subsequent and facially untimely PCRA

petition challenges the performance of PCRA counsel.”     Robinson, supra,

139 A.3d at 182.




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      Accordingly, as Axe’s second petition fails to satisfy any statutory

exception to the PCRA time bar, the PCRA court properly dismissed the

instant petition as untimely.

      Therefore, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2017




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