J-S84028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

SHAUN PATRICK AUSTIN

                            Appellant                    No. 886 EDA 2016


             Appeal from the PCRA Order Dated February 19, 2016
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002008-2008


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                           FILED DECEMBER 21, 2016

        Appellant, Shaun Patrick Austin, appeals pro se from the order denying

his most recent petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The PCRA court denied relief on the

basis that Appellant’s petition was untimely. Upon review, we affirm.

        On September 18, 2009, a jury convicted Appellant of 96 counts of

possession of child pornography.1          On December 22, 2009, the trial court

sentenced Appellant to an aggregate 72 to 192 years’ incarceration.         See

Commonwealth v. Austin, 66 A.3d 798, 801 (Pa. Super.), aff’d, 77 A.3d

1258 (Pa. 2013) (table). On direct appeal, this Court affirmed Appellant’s
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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6312(d).
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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 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 Appellant’s petition for allowance of

appeal on October 22, 2013. Austin, 77 A.3d 1258.

      On February 28, 2014, Appellant 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

Appellant’s counsel on December 10, 2015.          In the meantime, on May 8,

2015, Appellant filed the pro se petition at issue in this appeal. 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 Appellant did not

raise or prove a time-bar exception. This appeal followed.

      Preliminarily, we recognize our Supreme Court’s directive:



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         We now hold that when 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).

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (emphasis added).

The language in Lark militates in favor of a finding that Appellant’s May 8,

2015 pro se PCRA petition was premature, because his February 28, 2014

PCRA petition was pending before the Superior Court when he filed his

May 8, 2015 petition. However, given the convoluted procedural posture of

this case, including Appellant’s relating of his May 8, 2015 petition to his

February 28, 2014 petition, the ultimate discontinuation by counsel of the

February 28, 2014 petition on December 10, 2015, and the PCRA court’s

consideration of the May 8, 2015 petition, we, like the PCRA court, examine

the petition filed by Appellant on May 8, 2015.

      In reviewing the propriety of the PCRA court’s order denying Appellant

relief, we are limited to ascertaining whether the record supports the

determination of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great

deference to the factual findings of the PCRA court, “but its legal


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determinations are subject to our plenary review.” Id. The PCRA court has

discretion to dismiss a petition without a hearing when the court is satisfied

that no genuine issues of material fact have been raised, no legitimate

purpose would be served by further proceedings, and the petitioner is not

entitled on the merits to post-conviction relief. Pa. R.Crim.P. 908(B).

      In his pro se brief, Appellant presents the following issues:

      1. Is a second PCRA petition the proper procedure to request
         relief from ineffective PCRA counsel?

      2. Did the Court err when it failed to rule on the request to
         proceed Nunc Pro Tunc on the Habeas Corpus Appeal[?]

      3. Did PCRA Counsel render ineffective assistance of counsel
         when he failed to litigate issues raised in the initial PCRA?

      4. Do the following issues        meet   the   Pierce   and     PCRA
         ineffectiveness standard?

         a.)   Was Pre-trial attorney ineffective for failing for present
               Appellant’s testimony to suppress the confessions?

         b.)   Was trial and pre-trial counsel ineffective for failing to
               present witness Jen McDaniel?

         c.)   Was pre-trial counsel ineffective for failing to raise
               instances of police misconduct to impeach police
               officers’ testimony?

         d.)   Were trial and pre-trial counsel ineffective for failing to
               respond appropriately to Prosecutorial Misconduct?

         e.)   Was pre-trial counsel ineffective for failing to raise
               “Does seizure of licensed and lawfully owned firearm
               constitute custody?”

         f.)   Was resentencing counsel ineffective for failing to raise
               claim of “Sentence Retaliation”, reliance on erroneous
               mental health reports, and reliance on improper
               factors?

Appellant’s Brief at 10.

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        We conclude that we lack jurisdiction to consider these issues because

the PCRA court correctly determined that Appellant’s most recent PCRA

petition was untimely filed.       The timeliness of a post-conviction petition is

jurisdictional.    Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa.

Super. 2013). Generally, a petition for relief under the PCRA 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 set forth in Section 9545(b)(1) of the statute. 2 A PCRA

petition invoking one of these statutory exceptions must “be filed within

sixty days of the date the claim could first have been presented.”

Hernandez, 79 A.3d at 652 (citing 42 Pa.C.S. § 9545(b)(2)).              Asserted

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2
    The three 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).




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exceptions to the time restrictions in the PCRA must be included in the

petition   and    may     not    be    raised     for   the   first   time   on   appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007) (citation

omitted), appeal denied, 959 A.2d 927 (Pa. 2008) (table).

       The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on October 22, 2013. Appellant did not file a petition for

writ of certiorari with the United States Supreme Court, and as a result, his

judgment of sentence became final ninety days after October 22, 2013 —

on Tuesday, January 21, 2014.3                 See U.S. Sup. Ct. R. 13; 42 Pa.C.S.

§ 9545(b)(3).      He thus had to file his PCRA petition within one year, by

January 21, 2015, for it to be timely. 42 Pa.C.S. § 9545(b)(1). As Appellant

filed the instant petition on May 8, 2015, his petition is untimely unless he

has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, 79 A.3d at 651.

       Within both his petition and his brief, Appellant neither acknowledged

the PCRA’s time bar nor attempted to prove any exception to it.                   When a

PCRA petitioner fails to preserve a claim of PCRA counsel’s ineffectiveness

before the PCRA court, he or she may raise the claim in a serial petition, but

that petition must be timely. See generally Commonwealth v. Henkel,

90 A.3d 16 (Pa. Super.) (en banc), appeal denied, 101 A.3d 786 (Pa.
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3
 Monday, January 20, 2014, was the Martin Luther King, Jr. holiday. See
generally 1 Pa.C.S. § 1908.



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2014) (table).   Thus, even if Appellant’s May 8, 2015 PCRA petition was

properly before the PCRA court, he failed to plead and prove any timeliness

exception.   We therefore affirm the PCRA court’s order denying Appellant

post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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