J-S85017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RALPH M. DUNCAN                           :
                                           :
                    Appellant              :   No. 645 WDA 2017

                  Appeal from the PCRA Order April 5, 2017
              In the Court of Common Pleas of Indiana County
            Criminal Division at No(s): CP-32-CR-0000822-2012


BEFORE: BOWES, J., PANELLA, J., and STABILE, J.

JUDGMENT ORDER BY PANELLA, J.                            FILED MAY 01, 2018

      Appellant, Ralph M. Duncan, pled to one count of sexual assault and two

counts of witness intimidation, following his sexual molestation of his

stepdaughter and subsequent attempts to prevent his wife and stepson from

reporting the sexual abuse to the police. He is serving an 8½ to 30 year

sentence. Duncan raises a battery of claims in this second, pro se PCRA

petition, but fails to meaningfully address the petition’s untimeliness, or plead

and prove any exception to the PCRA’s time-bar. We affirm.

      The timing of a petition “is a threshold question implicating our subject

matter jurisdiction and ability to grant the requested relief.” Commonwealth

v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations omitted). A second

petition must be filed within one year of the date the judgment is final unless

the petition alleges, and the petitioner proves, an exception to the timeliness

requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking one
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of these statutory exceptions “shall be filed within 60 days of the date the

claim could have been presented[,]” 42 Pa.C.S.A. § 9545(b)(2), and

exceptions to the PCRA’s time bar must be pled in the petition, see

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

      Duncan was sentenced on March 25, 2013. He thereafter appealed to

this Court, which affirmed his judgment of sentence. Duncan’s judgment of

sentence became final on March 12, 2014, when his time for filing a petition

for allowance of appeal to the Pennsylvania Supreme Court elapsed. See

Pa.R.A.P. 1113(a); 42 Pa.C.S.A. 9545(b)(3). This petition, filed over two years

later, on March 28, 2016, is patently untimely.

      Duncan’s PCRA petition wholly fails to address the PCRA’s timeliness

requirement, or to allege any facts to indicate why his case might be exempt

from the time-bar. Though Duncan’s appellate brief acknowledges the

existence of a timeliness requirement, he fails to plead an exception to it save

for invoking the words “newly discovered fact” on a single page. Duncan does

not even indicate which fact is newly discovered.

      Instead, Duncan raises several claims of ineffective assistance of

counsel. Specifically, he alleges that plea counsel was ineffective for a litany

of   reasons,   including   failure   to    withdraw   Duncan’s   plea   after   the

Commonwealth allegedly added additional charges. He shoehorns this and

other contentions into his PCRA petition by claiming appellate counsel and

appointed PCRA counsel for his first petition were ineffective for failing to raise

these issues at earlier stages in the proceedings.

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      “[I]t is well-settled that couching a petitioner’s claims in terms of

ineffectiveness will not save an otherwise untimely filed petition from the

application of the time restrictions of the PCRA.” Commonwealth v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted). “This Court has

never suggested that the right to effective PCRA counsel can be enforced via

an untimely filed PCRA petition.” Id. Consequently, we are without jurisdiction

to address Duncan’s ineffectiveness claims.

      Duncan also claims the PCRA court’s Rule 907 notice failed to correctly

apprise him of why his petition was denied without a hearing. Duncan indicates

the notice stated his petition was time-barred and its issues were previously

litigated, but that the court’s Rule 1925(a) opinion instead finds Duncan’s

ineffective assistance pleadings deficient. Notwithstanding the court’s decision

to evaluate these ineffectiveness claims in its Rule 1925(a) opinion, the Rule

1925(a) opinion does correctly note Duncan’s claims are time-barred. The

Rule 907 notice therefore properly informed him why his petition was denied

without a hearing.

      As Duncan’s petition is untimely, and he failed to argue the applicability

of any of the PCRA’s statutory exceptions to the time-bar, we are without

jurisdiction to consider the merits of his petition. Consequently, we affirm the

PCRA court’s order denying relief.

      Order affirmed.




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J-S85017-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2018




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