J-S58029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES L. ANDREWS,

                            Appellant                 No. 337 WDA 2014


             Appeal from the PCRA Order Entered January 27, 2014
               In the Court of Common Pleas of Lawrence County
              Criminal Division at No(s): CP-37-CR-0001120-2006


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 23, 2014



27, 2014 order denying as untimely his petition for relief filed pursuant to

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

        In March of 2007, Appellant was convicted by a jury of aggravated

indecent assault, indecent assault, and simple assault. He was sentenced on

July 25, 2007, to an aggregate term of five to ten y

Appellant filed a direct appeal, but that appeal was ultimately discontinued



        On July 18, 2008, Appellant filed a pro se PCRA petition seeking, inter

alia, the restoration of his direct appeal rights nunc pro tunc.     The court

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58029-14



granted that request and Appellant filed a nunc pro tunc direct appeal. After



petition for allowance of appeal on February 8, 2011. Commonwealth v.

Andrews, 6 A.3d 566 (Pa. Super. 2010) (unpublished memorandum),

appeal denied

of sentence became final on May 9, 2011.         See 42 Pa.C.S. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review);

Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing



days after our Supreme Court rejects his or her petition for allowance of

appeal since petitioner had ninety additional days to seek review with the

United States Supreme Court).

     On August 1, 2013, Appellant filed a pro se PCRA petition and counsel

was appointed. Counsel filed an ame

the court conducted an evidentiary hearing. On January 27, 2014, the PCRA



filed a timely notice of appeal, as well as a timely concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Herein,

Appellant raises two questions for our review:

     (a) [Did] [t]he exception(s) of 42 Pa.C.S. § 9545(b)(1)(ii)/(b)(2)
     apply to fulfill the timeliness requirements of the PCRA statute
                                   pro se PCRA petition[?]



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      (b) [Did] [p]rior PCRA counsel fail[] to pursue and/or preserve
      previously raised issue(s) involving ineffectiveness of the
      Lawrence County PA Public Defender Office as set forth in the
      Amended [first] PCRA petition (i.e., failure to call character
      witness(es) to testify on behalf of the defense at trial) thereby
      constituting ineffectiveness since [Appellant] was previously
      unaware (until being informed by present counsel in connection
      with filing of the Amended [second] PCRA [p]etition) that these
      issue(s) were not fully pursued in prior PCRA proceeding(s)[?]




order denying a petition under the PCRA is whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).             The PCRA



findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).



the PCRA time limitations implicate our jurisdiction and may not be altered

or disregarded in order to address the merits of a petition. Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded to address

the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291,

1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to

reach merits of an appeal from an untimely PCRA petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

must be filed within one year of the date the judgment of sentence becomes


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final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545 applies.

That section states, in relevant part:

      (b) Time for filing petition.--

         (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:

            (i) the failure to raise the claim previously was the
            result of interference by 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)(i)-(iii).   Any petition attempting to invoke one of

                                            days of the date the claim could




and thus, he had until May 9, 2012, to file a timely petition. Consequently,

his August 1, 2013 petition is facially untimely and, for this Court to have

jurisdiction to review the merits thereof, Appellant must prove that his

petition meets one of the exceptions to the timeliness requirements set forth

                                                            ch are related, he



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contends that his petition satisfies the after-discovered fact exception of

section 9545(b)(1)(ii).    Specifically, Appellant claims that his current



represented Appellant in the disposition of his July 18, 2008 PCRA petition)




that he believed his prior PCRA counsel pursued this claim, and it was not

until his present attorney was appointed that he discovered that prior

counsel had not done so.



because it is meritless on its face. Our Supreme Court has expressly stated

                                              -discovered evidence exception

merely by alleging that possible ineffective assistance of counsel claims were

unknown to the petitioner and could not have been discovered until after

                                                   Commonwealth v. Abu-

Jamal, 833 A.2d 719, 725-726 (Pa. 2003) (quoting Commonwealth v.

Howard, 788 A.2d 351, 355 (Pa. 2002)); see also Commonwealth v.

Gamboa-Taylor




the benefit of the exception for after-discovered evidence.       In sum, a

conclusion that previous counsel was ineffective is not the type of after-




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      Based on this precedent, which Appellant makes no attempt to

distinguish, it is clear that App

exception set forth in section 9545(b)(1)(ii).   Accordingly, the PCRA court

did not err in denying his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2014




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