J-S49016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

THOMAS J. CROSSLEY

                         Appellant                  No. 3594 EDA 2015


               Appeal from the PCRA Order October 27, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004523-2009
                          CP-23-CR-0004531-2009
                          CP-23-CR-0005623-2009


BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JULY 13, 2016

      Appellant, Thomas J. Crossley, appeals pro se from the order entered

on October 27, 2015, dismissing his third petition filed pursuant to the Post

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

dismissal of this untimely petition.

      On March 3, 2010, Appellant pled guilty to 70 counts of burglary, one

count of conspiracy, and two counts of robbery. On that same day, the trial

court sentenced Appellant to ten to 30 years’ incarceration, followed by ten

years’ probation, in accordance with the terms of the negotiated plea.

Appellant did not file post-sentence motions or a notice of appeal from the

judgment of sentence.




*Former Justice specially assigned to the Superior Court.
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        On July 27, 2010, Appellant filed an untimely, pro se motion to modify

his sentence, which the court treated as a timely PCRA petition. The PCRA

court dismissed the petition on April 15, 2011.      A timely appeal followed.

This Court affirmed the dismissal of Appellant’s petition on April 2, 2012.

        Appellant filed his second PCRA petition on April 19, 2012. Appellant’s

petition alleged that he did not enter a voluntary plea because of an alleged

threat issued by the trial court to sentence him to 160 years’ imprisonment.

The PCRA court dismissed Appellant’s petition without a hearing on June 2,

2014. We affirmed that dismissal order on February 6, 2015.

        Subsequently, Appellant obtained a copy of his guideline sentencing

form through a Freedom of Information Act request. He thereafter filed his

third petition, pro se, on July 28, 2015, in the form of a petition for writ of

habeas corpus. The court treated Appellant’s submission as a petition under

the PCRA. Appellant claimed that plea counsel was ineffective and that his

sentence was “illegal” because it exceeded the guidelines and because the

sentencing court never stated its rationale on the record or completed the

guideline sentencing form. Appellant’s Brief at 7. The PCRA court dismissed

this petition as untimely by order dated October 27, 2015.         This appeal

followed.1

        Appellant raises the following questions for our review:

____________________________________________


1
    Both Appellant and the PCRA court complied with Pa.R.A.P. 1925.



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      Whether Appellant’s failure to raise issues concerning his
      sentencing in a motion [pursuant to] Pennsylvania Rule of
      Criminal Procedure [720] constitute[d] a knowing and intelligent
      waiver since he was not informed on the record that failure to so
      file would affect his right to raise issues upon appeal?

      Whether [] trial counsel was ineffective in that he failed to raise
      these issues presented as questions herein either at Appellant’s
      sentencing hearing or in a motion pursuant to Pennsylvania Rule
      of Criminal Procedure 720?

      Whether the trial court erred by sentencing              Appellant
      unreasonably outside the sentencing guidelines?

      Whether the trial court erred by failing to state upon the record
      during sentencing proceedings and in a [c]ontemporaneous
      [m]emorandum his reasons for the sentence imposed?

Appellant’s Brief at 3.

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.     Because the time-bar implicates the subject matter

jurisdiction of our courts, we first determine the timeliness of a petition

before we consider the underlying claims. Commonwealth v. Yarris, 731

A.2d 581, 586 (Pa. 1999). As our Supreme Court explained:

      the PCRA timeliness requirements are jurisdictional in nature
      and, accordingly, a PCRA court is precluded from considering
      untimely PCRA petitions.         See, e.g., Commonwealth v.
      Murray, 753 A.2d 201, 203 (Pa. 2000) (stating that “given the
      fact that the PCRA’s timeliness requirements are mandatory and
      jurisdictional in nature, no court may properly disregard or alter
      them in order to reach the merits of the claims raised in a PCRA
      petition that is filed in an untimely manner”); Commonwealth
      v. Fahy, 737 A.2d 214, 220 (Pa. 1999) (holding that where a
      petitioner fails to satisfy the PCRA time requirements, this Court
      has no jurisdiction to entertain the petition).

                                      ***


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     [Timeliness] is a threshold question implicating our subject
     matter jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-76 (Pa. 2003).

     This time-bar demands that “any PCRA petition, including a second or

subsequent petition, [] be filed within one year of the date that the

petitioner’s judgment of sentence becomes final, unless [the] petitioner

pleads [and] proves that one of the [three] exceptions to the timeliness

requirement . . . is appropriate.” Commonwealth v. McKeever, 947 A.2d

782, 785 (Pa. Super. 2008); see also 42 Pa.C.S.A. § 9545(b). A judgment

of sentence becomes final at the conclusion of direct review or at the

expiration of the time for seeking review. Fahy, 737 A.2d at 218.

     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 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.A. § 9545(b)(1)(i)-(iii).

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Commonwealth v. Brown, 111 A.3d 171, 175-176 (Pa. Super. 2015).

       In the case at bar, Appellant’s judgment of sentence became final on

April 2, 2010, when his time for filing a direct appeal to this Court expired.

Fahy, 737 A.2d at 218; Pa.R.A.P. 903(a). Appellant then had until April 2,

2011 to file a timely PCRA petition.             42 Pa.C.S.A. § 9545(b)(1).   As

Appellant did not file his current petition until July 28, 2015, his petition is

patently untimely. The burden thus falls upon Appellant to plead and prove

that one of the enumerated exceptions to the one-year time-bar applies to

his case. Brown, 111 A.3d at 175.

       Appellant argued in his petition that his claims are not time-barred

because of the “newly discovered facts” exception.2 PCRA Petition, 8/20/15,

at ¶¶ 9-15. Specifically, Appellant maintains that the guideline sentencing

form he recently obtained includes facts that were previously unknown to

him and which could not have been ascertained by the exercise of due

diligence.3 Id.


____________________________________________


2
    See 42 Pa.C.S.A. § 9545(b)(1)(ii).
3
   Alternatively, Appellant contends that § 9545(b)(1)(i) excuses the
untimeliness of his petition because the sentencing judge interfered with the
presentation of these claims in violation of Appellant’s constitutional right to
due process of law. PCRA Petition, 8/20/15, at ¶ 14. This Court is uncertain
what Appellant’s theory of governmental interference might be. Since
Appellant did not request the guideline sentencing form until five years after
(Footnote Continued Next Page)


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      [A]s an initial jurisdictional threshold, [§ 9545(b)(1)(ii)] requires
      [Appellant] to allege and prove that there were facts unknown to
      him and that he exercised due diligence in discovering those
      facts. Once jurisdiction is established, [Appellant] can present a
      substantive after-discovered-evidence claim.

                                      *          *   *

      In other words, the “new facts” exception at [§ 9545](b)(1)(ii)
      has two components, which must be alleged and proved.
      Namely, [Appellant] 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.

Commonwealth v. Brown, 111 A.3d 171, 176-77 (Pa. Super. 2015)

(emphasis in original, citations and quotations omitted).        “Due diligence

demands that the [appellant] take reasonable steps to protect his own

interests.”   Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super.

2001). We strictly enforce this rule. Id.

      The guideline sentencing form upon which Appellant bases his claims is

part of the public record of this case. It was available for Appellant’s review

since April of 2010. As the PCRA court observed:

      Waiting in excess of five (5) years to make an application for a
      copy of court documents that have been noted on the
      Administrative Office of the Pennsylvania Courts Delaware
      County computerized criminal docket since April of 2010 cannot
      reasonably or otherwise be seen as exercising due diligence.

PCRA Court Opinion, 2/12/16, at 16.
                       _______________________
(Footnote Continued)

his sentencing hearing, he cannot argue that any act or omission of the
sentencing judge is responsible for the delay in raising the instant claims.
We are therefore not convinced that the governmental interference
exception applies here.



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     Appellant fails to plead or prove any explanation as to why, in the

exercise of due diligence, he could not have acquired the guideline

sentencing form, or learned of the information contained therein, within the

one-year period prescribed by the PCRA. See Commonwealth v. Lopez,

84 A.3d 195, 196 (Pa. 2012) (concluding that PCRA petition does not qualify

for exception found at § 9545(b)(1)(ii) where information at issue was

publicly available for years and discoverable); see also Commonwealth v.

Stokes, 959 A.2d 306, 310 (Pa. 2008) (petitioner’s failure to explain why he

did not request information earlier defeats governmental interference and

newly discovered facts exceptions to PCRA time-bar). Therefore, Appellant’s

attempt to invoke the “newly discovered facts” exception to the PCRA

time-bar fails and the PCRA court correctly dismissed his petition as

untimely. See Brown, 111 A.3d at 176-77.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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