J-S30025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

EDWARD GRAZIANO,

                         Appellant                    No. 955 MDA 2016


            Appeal from the PCRA Order entered May 18, 2016,
              in the Court of Common Pleas of Centre County,
           Criminal Division, at No(s): CP-14-CR-0000874-2001.


BEFORE: SHOGAN, RANSOM, and MUSMANNO, JJ.

MEMORANDUM BY RANSOM, J.:                              FILED JUNE 27, 2017

      Appellant, Edward Graziano, appeals pro se from the May 18, 2016

order denying as untimely his petition filed pursuant to the Post Conviction

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

      The pertinent facts and procedural history, as gleaned from our review

of the certified record, are as follows: At the conclusion of a bench trial held

on November 28, 2001, Appellant was convicted of seven counts of

possessing weapons or implements of escape after correctional officers

found such items during a search of his prison cell. On January 22, 2002,

the trial court sentenced Appellant to an aggregate term of one-and-one-half

to five years of imprisonment. The trial court directed that this sentence run

consecutively to Appellant’s life sentence that was imposed following his

conviction for first-degree murder in Philadelphia on September 10, 1993.
J-S30025-17



See Commonwealth v. Graziano, No. 3077 Philadelphia 1993 (Pa. Super.

1995) (unpublished memorandum).

       Appellant did not file an appeal. Following the filing of a PCRA petition,

however, Appellant’s direct appeal rights were reinstated nunc pro tunc.

Thereafter, Appellant timely appealed; this Court affirmed his judgment of

sentence, and on September 8, 2006, our Supreme Court denied Appellant’s

petition for allowance of appeal.        Commonwealth v. Graziano, 903 A.2d

45 (Pa. Super. 2006) (unpublished memorandum), appeal denied, 906 A.2d

1196 (Pa. 2006). Appellant did not seek further review.

       On May 23, 2007, Appellant pro se filed a PCRA petition.1 The PCRA

court appointed counsel, and the Commonwealth filed an answer to the

petition. On May 26, 2009, the PCRA Court granted Appellant’s motion to

withdraw his second petition.

       Appellant pro se filed another PCRA petition on April 3, 2015.       Once

again, the PCRA court appointed counsel.          On February 10, 2016, PCRA

counsel filed a motion to withdraw. Appellant filed a pro se response. The

PCRA court granted counsel’s motion to withdraw on April 14, 2016.            On

April 19, 2016, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to

dismiss Appellant’s PCRA petition without a hearing. Once again, Appellant
____________________________________________


1
  When a PCRA petitioner’s direct appeal rights are reinstated nunc pro tunc
in a first petition, a subsequent petition for collateral relief is deemed a first
petition for timeliness purposes under the PCRA.                      See, e.g.,
Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013).



                                           -2-
J-S30025-17



filed a pro se response.   By order entered May 18, 2016, the PCRA court

dismissed Appellant’s petition as untimely. This timely appeal follows. Both

the Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

         I.     [Whether] the [PCRA] court erred in finding
                Appellant failed to establish PCRA jurisdiction by
                pleading and proving an exception to [the] PCRA
                time-bar under 42 Pa.C.S. §9545(b)(1)(i-ii)?

         II.    [Whether] the [PCRA] court erred or abused its
                discretion in granting counsel’s motion to withdraw
                as counsel, where the record demonstrated
                Appellant’s claim had merit and factual basis?

         III.   [Whether] the [PCRA] court erred in ordering
                Appellant’s sentence to run consecutive to a
                sentence not yet imposed by [the] Court of Common
                Pleas of Philadelphia County, where [the] conviction
                in that criminal matter was not finalized through the
                docketing of a valid signed and sealed written
                judgment of sentence order?

Appellant’s Brief at 4 (excess capitalization omitted).

      In order to address Appellant’s issues, we must first determine

whether the PCRA court correctly determined that Appellant’s petition for

post-conviction relief was untimely filed.     This Court’s standard of review

regarding an order dismissing a petition under the PCRA is “to determine

whether the determination of the PCRA court is supported by the evidence of

record and is free of legal error.     The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.




                                     -3-
J-S30025-17


Commonwealth v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013)

(citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A. § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of

the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).          Finally,

exceptions to the PCRA’s time bar must be pleaded in the petition and may

____________________________________________


2
    The 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.A. §§ 9545(b)(1)(i), (ii), and (iii).




                                           -4-
J-S30025-17


not be raised for the first time on appeal. Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that

issues not raised before the lower court are waived and cannot be raised for

the first time on appeal).

      Appellant’s judgment of sentence became final on or about December

7, 2006, when the ninety-day time period for filing a writ of certiorari with

the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);

U.S.Sup.Ct.R. 13.    Thus, Appellant had until December 7, 2007, to file a

timely PCRA petition.   As Appellant filed the instant petition in 2015, it is

patently untimely unless he has satisfied his burden of pleading and proving

that one of the enumerated exceptions applies. See Hernandez, supra.

      Appellant first claims that he has met the governmental interference

exception under Section 9545(b)(1)(i).     See Appellant’s Brief at 13.     Our

review of the record, however, confirms the Commonwealth assertion that

Appellant inappropriately is raising this exception for the first time on

appeal. Thus, we need not consider it further. Burton, supra.

      Appellant also argues that he met the newly discovered facts exception

under Section 9545(b)(1)(ii) because he did not discover the lack of a valid

sentencing order for his 1992 murder conviction “until February 3, 2015,

when the Office of Judicial Records of Philadelphia finally released to [him] []

eleven documents that it falsely represented” as representing his sentencing

order. Appellant’s Brief at 13-14. According to Appellant, prior to receiving


                                     -5-
J-S30025-17


these documents, he “had no occasion to doubt the accuracy of the

Philadelphia Criminal Docket entries representing that a valid sentencing-

order was filed on September 10, 1993, in accordance with procedural and

substantive rules of law.” Id. at 14.

       When considering a PCRA’s petitioner’s claim that he or she has

established   an    exception    to   the   PCRA’s     time      bar   under   section

9545(b)(1)(ii), the petitioner must establish only that the facts upon which

the claim is predicated were unknown to him and that he could not have

ascertained   the   facts   earlier   despite   the   exercise    of   due   diligence.

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). “[D]ue

diligence requires neither perfect vigilance nor punctilious care, but rather it

requires reasonable efforts by a petitioner, based on the particular

circumstances, to uncover facts that may support a claim for collateral

relief.”   Commonwealth v. Burton, 121 A.3d 1063, 1071 (Pa. Super.

2015), aff’d, --- A.3d --- (Pa. 2017). The determination of timeliness does

not require a merits analysis of the underlying claim. Commonwealth v.

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

       Here, the PCRA court found that Appellant did not demonstrate the

exercise of due diligence:

       In the case at bar, [Appellant] contends he discovered on
       February 12, 2015 [sic] that no sentencing order exists for [his]
       previous conviction.   [Appellant’s] letter to the Philadelphia
       County Court states his sentencing order would have been
       entered on or about September 10, 1993. In the more than
       twenty (20) years between [Appellant’s] sentencing [in that

                                        -6-
J-S30025-17


     case] and the filing of the current PCRA petition, [Appellant]
     could have, with due diligence, ascertained the existence and
     location of his sentencing order. The Court finds the newly
     discovered facts exception to the timeliness requirement does
     not apply to [Appellant’s] PCRA petition.

PCRA Court Opinion, 4/20/16, at 3.

     We agree. Appellant did not exercise due diligence. See Burton, 121

A.3d at 1071. Accordingly, Appellant did not establish the newly discovered

facts exception to the timeliness requirements of the PCRA.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




                                     -7-
