J-S17018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 DAVID CHALOEUNPORN                     :
                                        :
                   Appellant            :   No. 4009 EDA 2017

             Appeal from the PCRA Order December 11, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0004499-2007


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                             FILED MAY 10, 2019

     Appellant, David Chaloeunporn, appeals pro se from the order entered

on December 11, 2017, dismissing his second petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     As we previously explained:

       On December 6, 2007, Appellant . . . entered a[n open] guilty
       plea to multiple sexual offenses involving two of his nieces,
       ages ten and [13]. On May 28, 2008, the trial court
       sentenced Appellant to an aggregate term of seven and
       one-half to [15] years of imprisonment, to be followed by a
       [25] year probationary term. Appellant did not file a direct
       appeal.

Commonwealth v. Chaloeunporn, 106 A.3d 178 (Pa. Super. 2014)

(unpublished memorandum) at 1.
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      On November 25, 2008, Appellant filed his first PCRA petition. The PCRA

court dismissed the petition on October 10, 2013 and, on August 27, 2014,

we affirmed the PCRA court’s order. Id. at 1-7.

      Appellant filed the current petition – his second – on July 7, 2016.

Within this petition, Appellant claimed:

        [Appellant] is a Cambodian [immigrant] who became a
        naturalized U.S. citizen. He had no translator provided for
        any proceedings. This is his second PCRA filed pursuant to
        § 9543 in that exculpatory evidence has subsequently
        become available and would have demonstrated actual and
        factual innocence at trial. The evidence is in the form of
        [Appellant’s] ex-wife’s notarized affidavit [and she] is the
        first of five witnesses who will testify to demonstrate
        [Appellant’s] innocence. Also plea attorney Ronald Smith will
        be shown to have unlawfully induced a guilty plea from this
        petitioner even though he is innocent. This new evidence is
        not cumulative because no affidavits of recantation have
        been materially filed in this matter.

Appellant’s Second PCRA Petition, 7/7/16, at 3.

      Appellant attached his ex-wife’s affidavit to his petition. The affidavit

declares:

        I, Tum Chaloeunporn, former wife of [Appellant], took the
        fathers of [the victims] to the office of Ronald Smith, Esq.,
        defense attorney of [Appellant], for the purpose of delivering
        a letter of recantation to the charges in this case, prior to the
        guilty plea. I will freely testify to this fact in open court.

Id. at Attachment.

      The PCRA court appointed counsel to represent Appellant during the

proceedings.   Trial Court Order, 5/17/17, at 1.     However, court-appointed

counsel filed a motion to withdraw and a no-merit letter pursuant to



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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). See Turner/Finley

Letter, 9/27/17, at 1-6. After receiving the Turner/Finley filing, the PCRA

court issued notice of its intent to dismiss the petition without an evidentiary

hearing.     See Pa.R.Crim.P. 907(1).         Appellant filed a response to the

Turner/Finley letter and the Rule 907 notice, which:           claimed that the

petition was timely under the federal Antiterrorism and Effective Death Penalty

Act; requested that appointed counsel “withdraw” her request to withdraw;

requested that the PCRA court judge recuse; and, reiterated the claim he

raised in his PCRA petition. See Appellant’s Response, 11/2/17, at 1-8.

      On December 11, 2017, the PCRA court dismissed Appellant’s petition

and the PCRA court later granted counsel’s petition to withdraw. Appellant

filed a timely notice of appeal. We now affirm the dismissal of Appellant’s

patently untimely, serial PCRA petition.

      “As a general proposition, we review a denial of PCRA relief to determine

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Eichinger, 108 A.3d 821, 830 (Pa. 2014).

      Before this Court may address the substance of Appellant’s claims, we

must determine if this petition is timely.

           [The PCRA requires] a petitioner to file any PCRA petition
           within one year of the date the judgment of sentence
           becomes final. A judgment of sentence becomes final at the
           conclusion of direct review . . . or at the expiration of time
           for seeking review.

                                        ...

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        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the
        three limited exceptions to the time for filing the petition, set
        forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
        A petition invoking one of these exceptions must be filed
        within [60] days of the date the claim could first have been
        presented. In order to be entitled to the exceptions to the
        PCRA’s one-year filing deadline, the petitioner must plead
        and prove specific facts that demonstrate his claim was raised
        within the [60]-day timeframe.

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (quotations

and some citations omitted).

     In the present case, the PCRA court found Appellant’s petition to be

untimely filed. See PCRA Court Order, 10/13/17, at 1. We agree. Appellant’s

judgment of sentence became final in 2008. The PCRA explicitly requires that

a petition be filed “within one year of the date the judgment becomes final.”

42 Pa.C.S.A. § 9545(b)(1). As such, Appellant’s current petition, which was

filed on July 7, 2016, is patently untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.       See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements of

the relied-upon exception).

     Appellant purports to invoke the “newly-discovered facts” exception to

the time-bar. This statutory exception provides:


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         (1) Any petition under this subchapter, including a second or
         subsequent petition, shall be filed within one year of the date
         the judgment becomes final, unless the petition alleges and
         the petitioner proves that:

                                           ...

              (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[]

                                           ...

         (2) Any petition invoking an exception provided in paragraph
         (1) shall be filed within 60 days of the date the claim could
         have been presented.

42 Pa.C.S.A. § 9545(b).1

       As our Supreme Court has explained:

         subsection (b)(1)(ii) has two components, which must be
         alleged and proved. Namely, the petitioner must establish
         that: 1) “the facts upon which the claim was predicated were
         unknown” and (2) “could not have been ascertained by the
         exercise      of     due      diligence.”      42    Pa.C.S.
         § 9545(b)(1)(ii)(emphasis added). If the petitioner alleges
         and proves these two components, then the PCRA court has
         jurisdiction over the claim under this subsection.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (emphasis in

original).


____________________________________________


1 Effective December 24, 2018, the legislature amended Section 9545(b)(2)
to read: “Any petition invoking an exception provided in paragraph (1) shall
be filed within one year of the date the claim could have been presented.”
See 42 Pa.C.S.A. § 9545(b)(2) (effective December 24, 2018). However, the
amendment to Section 9545(b)(2) only applies to “claims arising on
[December] 24, 2017 or thereafter.” See id. at Comment. Appellant filed his
current petition on July 7, 2016; thus, the amended Section 9545(b)(2) does
not apply to Appellant’s claim.

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       Further, to properly invoke the newly-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the date

the claim could have been presented.”                42 Pa.C.S.A. § 9545(b).         As our

Supreme Court explained, to satisfy this “60-day requirement,” a petitioner

must “plead and prove that the information on which he relies could not have

been     obtained     earlier,    despite      the     exercise    of   due     diligence.”

Commonwealth           v.   Stokes,     959     A.2d    306,      310-311     (Pa.   2008);

Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001).                          Moreover,

because the “60-day requirement” of section 9545(b)(2) is a statutory

mandate, the requirement is “strictly enforced.”                    Commonwealth v.

Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010).

       In Appellant’s petition, Appellant never pleaded the date upon which he

learned that his former wife had allegedly recanted her testimony or delivered

a “letter of recantation” to Appellant’s trial counsel.2 See Appellant’s Second

PCRA Petition, 7/7/16, at 1-8 and Attachments. Therefore, on this basis alone,



____________________________________________


2 The affidavit from Appellant’s former wife is dated May 12, 2016. The
affidavit alleges that she delivered “a letter of recantation” to Appellant’s
defense counsel “prior to the guilty plea.” Appellant’s Second PCRA Petition,
7/7/16, at Attachment. Appellant’s second PCRA petition was filed within 60
days of the date marked on the affidavit. However, there is no evidence as
to when Appellant learned that his former wife had allegedly delivered the
“letter of recantation” to his trial counsel or, more specifically, when his former
wife recanted her testimony. As such, Appellant failed to plead that he filed
his petition, invoking the claim of newly-discovered facts, “within 60 days of
the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b).


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we conclude that Appellant did not properly plead the newly-discovered facts

exception to the PCRA’s one-year time-bar, as Appellant failed to plead that

he filed his petition, invoking the claim, “within 60 days of the date the claim

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

      Since Appellant failed to plead a valid exception to the PCRA's one-year

time-bar, Appellant's petition is time-barred. Thus, our “courts are without

jurisdiction to offer [Appellant] any form of relief.”    Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). We affirm the PCRA court's

order dismissing Appellant’s second PCRA petition without a hearing.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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