J-S51037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSE SANTIAGO                              :
                                               :
                      Appellant                :   No. 644 EDA 2017

                  Appeal from the PCRA Order January 13, 2017
                 In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002649-2011,
                             CP-15-CR-0002721-2010


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 14, 2017


        Appellant Jose Santiago appeals pro se from the Order entered in the

Court of Common Pleas of Chester County on January 13, 2017, dismissing

as untimely his second petition filed pursuant to the Post Conviction Relief

Act (PCRA).1 Because this petition is untimely without an applicable

exception, we affirm.

        A prior panel of this Court set forth the relevant factual and procedural

history herein:

              The PCRA court summarized the facts of the case as
        follows.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
J-S51037-17


                  On March 26, 2012, Appellant pled guilty to
           three counts of rape, three counts of involuntary
           deviate sexual intercourse, and one count of
           aggravated indecent assault.[1] At his plea hearing,
           Appellant admitted that he engaged in sexual
           intercourse and deviate sexual intercourse with his
           daughter and with two of his nieces, all of whom were
           minors at the time of his crimes. He also admitted to
           digitally penetrating the genitals of another daughter,
           who was also a minor at the time of the crime. He
           was sentenced that day to a term of imprisonment of
           twelve and one-half to twenty-five years.
                  On February 21, 2013, Appellant filed a pro se
         PCRA petition. [The PCRA court] appointed him PCRA
         counsel on February 27, 2013. On April 29, 2014,
         counsel moved to withdraw his representation, having
         found no issue that would entitle Appellant to post-
         conviction relief. [The PCRA c]ourt also conducted an
         independent review of the file and of the record, which
         review revealed that Appellant’s plea was entered into
         knowingly, voluntarily and intelligently, and that his
         sentence was legal. Thus, on June 6, 2013, [the PCRA
         court] entered an order giving Appellant the mandatory
         twenty day notice of [its] intention to dismiss his PCRA
         petition without a hearing.
                  Appellant responded to this notice on June 27,
           2013.      In his response he raised a somewhat
           ambiguous claim that he requested his trial counsel to
           file a direct appeal of his sentence…. Accordingly,
           [the PCRA court] scheduled a hearing on this issue
           [alone and ordered PCRA counsel to continue to
           represent Appellant].
                  Appellant’s PCRA hearing was held on October
         1, 2013.       The evidence presented at the hearing
         revealed that Appellant never requested his trial
         counsel to file a direct appeal of his sentence. For that
         reason, on February 26, 2014, [the PCRA court] denied
         Appellant’s petition under the [PCRA]. …
     PCRA Court Opinion, 4/7/2014, at 1-2 (citations omitted).
           Appellant, pro se, filed a notice of appeal on March 6,
     2014. On March 18, 2014, the PCRA court entered an order
     granting PCRA counsel leave to withdraw, and Appellant
     proceeded pro se in this Court. For reasons stated in our
     memorandum of October 7, 2014, we remanded the case for the

                                 -2-
J-S51037-17


      appointment of counsel and retained panel jurisdiction. Counsel
      was appointed, both counsel and the PCRA court thereafter
      complied with Pa.R.A.P. 1925, and the parties have submitted
      new briefs to this Court.

      ___
      1
        In exchange for his guilty pleas to these counts, the
      Commonwealth withdrew over 1,600 additional counts against
      Appellant. N.T., 3/26/2012, at 12.

Commonwealth        v.   Santiago,     No.   808    EDA    2014,    unpublished

memorandum at 1-2 (Pa.Super. filed September 4, 2015).

      In his first PCRA petition, Appellant argued the trial court had erred in

accepting his guilty plea, and this Court found Appellant waived this issue for

his failure to raise it on direct appeal. Id. at 3.         This Court further

determined that to the extent Appellant claimed trial counsel was ineffective

for failing to file a post-sentence motion or a direct appeal challenging the

validity of his plea, the PCRA court had not erred or abused its discretion in

rejecting such claims.   Id. at 3-6.    On October 9, 2015, Appellant filed a

petition for allowance of appeal with the Supreme Court of Pennsylvania,

and the Supreme Court denied Appellant’s petition on March 8, 2016. See

Commonwealth v. Santiago, 134 A.3d 56 (Pa. 2016) (Table).

      On December 6, 2016, Appellant filed the instant PCRA petition, his

second, pro se. Therein, Appellant claimed his constitutional rights had been

violated, trial counsel had been ineffective, and that the trial court abused its

discretion in permitting counsel to withdraw. The PCRA court filed a notice

of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907(1) on



                                       -3-
J-S51037-17


December 21, 2016, and Appellant filed a response thereto on January 6,

2017, claiming that his petition was timely because he filed it within one

year of the denial of his initial PCRA petition. Upon review, the PCRA court

concluded that Appellant's contentions were non-meritorious and dismissed

the petition on January 13, 2017.

      Appellant filed his notice of appeal from the PCRA court's Order on

February 6, 2017.      In his concise statement of errors complained of on

appeal, Appellant argued that because his first PCRA petition resulted in the

reinstatement of his direct appeal rights nunc pro tunc, the instant PCRA

petition was technically his first and, therefore, timely. The trial court issued

an Opinion pursuant to Pa.R.A.P. 1925(a) on April 10, 2017.

      In his brief, Appellant presents the following Statement of the

Questions Involved:

      1.   Did the [c]ourt below misconstrue timeliness of
      [A]ppellant[’]s PCRA without regard or allowance of amendment?

      2.    Did the court below ignore the actual innocence exception
      to timeliness?

Brief for Appellant at iv.

      “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court's findings are supported by

the record and without legal error.” Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted),

appeal denied, 600 Pa. 733, 963 A.2d 470 (2009). Before we address the


                                      -4-
J-S51037-17


merits of either issue Appellant has raised, we must first determine whether

the instant PCRA petition was timely filed, for it is well-settled that if a PCRA

petition is untimely, a trial court has no jurisdiction to entertain the petition.

See Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000).

      A PCRA petition, including a second or subsequent one, shall be filed

within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

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

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a

petition must allege and the petitioner must prove:

      (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

      (iii) the right asserted is a constitutional right that was
      recognized by 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)(i)-(iii).


                                      -5-
J-S51037-17


      The petitioner bears the burden to allege and prove one of the

enumerated exceptions to the one-year time-bar.         See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super.

2008) (finding that to invoke a statutory exception to the PCRA time-bar,

petitioner must properly plead and prove all required elements of the

exception). Moreover, “the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

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

Commonwealth v. Walters, 135 A.3d 589, 592 (Pa.Super. 2016)

(citations omitted) see also 42 Pa.C.S.A. § 9545(b)(2).

      As the PCRA court aptly found, Appellant erroneously reasons that his

first PCRA petition resulted in the reinstatement of his direct appeal rights

nunc pro tunc. In our memorandum decision filed on October 4, 2014, this

Court remanded the matter to the PCRA court for the appointment of

counsel who was to file a 1925(b) statement nunc pro tunc, after which the

PCRA court was directed to file either a new 1925(a) opinion or a statement

indicating that it relied upon its prior opinion.   We further indicated that

upon the return of the record to this Court, the Prothonotary would enter a

new briefing schedule at which time counsel may file either an advocate’s




                                     -6-
J-S51037-17


brief or a petition to withdraw along with a Turner/Finley2 brief addressing

the issues Appellant wishes to raise on appeal. Commonwealth v.

Santiago, No. 808 EDA 2014, unpublished memorandum at 5-6 (Pa.Super.

filed October 4, 2014).       On remand, counsel was appointed, and both the

PCRA court and counsel complied with Pa.R.A.P. 1925. In our subsequent

memorandum decision filed on September 4, 2015, this Court affirmed the

PCRA court’s Order denying Appellant’s first PCRA petition, not his judgment

of sentence.

       Appellant entered a guilty plea on March 26, 2012, and was sentenced

that day. Appellant did not file a direct appeal; therefore, his judgment of

sentence became final thirty days thereafter on April 25, 2012.         See 42

Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at conclusion of

direct review or at expiration of time for seeking that review). Thus,

Appellant had until April 25, 2013, to file a timely PCRA petition; however,

Appellant did not file the instant petition until December 6, 2016; therefore,

it is patently untimely under the PCRA.          See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 753 A.2d 780 (2000).

Consequently, Appellant is not entitled to relief on his first claim.


____________________________________________


2
 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).




                                           -7-
J-S51037-17


      Appellant next avers the instant PCRA petition is timely under what he

terms the “actual innocence exception” to the PCRA time-bar.          Though he

opines that “the particulars of the actual innocence claim is not within the

purview of This Court[,]” Appellant reasons that one’s “[a]ctual innocence

cannot be waived.” Appellant’s Brief at 2. Appellant further states that as a

result of multiple gunshot injuries he sustained years before the date of the

alleged offenses, he was rendered “paralyzed from the poin[t] of impact

south” making the reports filed by the victims “wholly fictitious.” Id.

      This claim is cognizable under the PCRA and, therefore, is subject to

the PCRA time-bar. See Commonwealth v. Abu-Jamal, 574 Pa. 724, 738,

833 A.2d 719, 728 (2003) (holding that although the term “actual

innocence” is not used in 42 Pa.C.S.A. § 9543 which enumerates cognizable

claims under the PCRA, because the PCRA specifically states it is meant to

provide a means of relief for those convicted of crimes they did not commit

and constitutes the sole means of obtaining collateral relief, a claim of

“actual innocence” is cognizable under the PCRA rather than in a writ for

habeas corpus).    However, Appellant did not raise this claim in his PCRA

petition or in his response to the PCRA court’s Rule 907 notice, and instead

asserted it for the first time in his Rule 1925(b) statement.             A PCRA

petitioner must plead and prove his allegation of error has not been

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is

waived if the petitioner could have raised it but failed to do so before trial, at


                                      -8-
J-S51037-17


trial, during unitary review, on appeal or in a prior state post-conviction

proceeding.” 42 Pa.C.S.A. § 9544(b).    Therefore, this claim is waived.

      Even if Appellant properly had preserved this issue on appeal, 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. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,

1271 (2007). Due diligence demands that the petitioner take reasonable

steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164,

1168 (Pa.Super. 2001). A petitioner must explain why he could not have

learned the new fact(s) earlier with the exercise of due diligence.

Commonwealth v. Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98

(2001).

      Certainly, Appellant was aware of his alleged gunshot injuries and

resultant paralysis at the time he entered his guilty plea, for by his own

admission the injuries were sustained “[y]ears prior to the supposed rapes.”

Appellant’s Brief at 2. Yet, he has failed to explain why he did not raise this

issue in a timely PCRA petition or within sixty days of the date on which this

claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2); Walters,

supra.

      For the foregoing reasons, Appellant’s PCRA petition is untimely and he

has failed to invoke successfully any exception to the statutory time-bar. As


                                     -9-
J-S51037-17


such, the PCRA court correctly determined it lacked jurisdiction to address

the merits of Appellant’s substantive claims, and we discern no other basis

on which to disturb the PCRA court’s dismissal of Appellant’s petition as

untimely.   Accordingly, we affirm.

     Order Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




                                      - 10 -
