J-S05002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
PAUL FRANK KATONKA                    :
                                      :
                  Appellant           :   No. 4 WDA 2017

              Appeal from the PCRA Order November 17, 2016
          In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001110-2008

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
            v.                        :
                                      :
                                      :
PAUL FRANK KATONKA                    :
                                      :
                  Appellant           :   No. 1493 WDA 2017

               Appeal from the PCRA Order August 22, 2017
          In the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001110-2008


BEFORE:   OLSON, J., OTT, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED MAY 4, 2018

     Appellant, Paul Frank Katonka, appeals pro se from the November 17,

2016 and August 22, 2017 orders dismissing his first and second petitions

filed pursuant to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        The factual background and relevant procedural history of this case

are as follows.      From 2003 through 2008, Appellant sexually abused his

stepdaughter when she was between 8 and 13 years old. On May 12, 2008,

the Commonwealth charged Appellant via criminal information with four

counts of involuntary deviate sexual intercourse of a victim less than 13

years old,1 two counts of attempted rape,2 two counts of aggravated

indecent assault of a victim less than 13 years old,3 two counts of indecent

assault of a victim less than 13 years old,4 two counts of involuntary deviate

sexual intercourse of a victim less than 16 years old,5 indecent assault of a

victim less than 16 years old,6 aggravated indecent assault of a victim less

than 16 years old,7 endangering the welfare of a child,8 and corruption of

minors.9

____________________________________________


1   18 Pa.C.S.A. § 3123(b).

2   18 Pa.C.S.A. §§ 901, 3121.

3   18 Pa.C.S.A. § 3125(a)(7).

4   18 Pa.C.S.A. § 3126(a)(7).

5   18 Pa.C.S.A. § 3123(a)(8).

6   18 Pa.C.S.A. § 3126(a)(8).

7   18 Pa.C.S.A. § 3125(a)(8).

8   18 Pa.C.S.A. § 4304(a)(1).

9   18 Pa.C.S.A. § 6301(a)(1).



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       On November 26, 2012, Appellant pled guilty to all 16 counts and was

immediately      sentenced      to   an   aggregate    term     of   8   to   16    years’

imprisonment. Appellant did not file a direct appeal. On March 23, 2016,

Appellant filed his first pro se PCRA petition.            Counsel was appointed and

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

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On September 30,

2016, the PCRA court issued notice of its intent to dismiss the petition

without an evidentiary hearing. See Pa.R.Crim.P. 907. On November 14,

2016, Appellant filed a response to the Rule 907 notice. On November 17,

2016, the PCRA court dismissed the petition and granted counsel’s motion to

withdraw. Appellant filed a timely notice of appeal which was docketed at 4

WDA 2017.10

       While    that   appeal    was      pending,   our    Supreme      Court     decided

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). On August 2, 2017,

Appellant filed a second pro se PCRA petition arguing that he was entitled to

relief under Muniz.       On August 22, 2017, the PCRA court dismissed the

petition for lack of jurisdiction.        Appellant filed a timely notice of appeal



____________________________________________


10 The PCRA court and Appellant complied with Pennsylvania Rule of
Appellate Procedure 1925.




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which was docketed at 1493 WDA 2017.11               The two appeals were

consolidated and we resolve both appeals in this memorandum.

       Appellant presents three issues for our review:


       1. [Whether the PCRA court erred in finding that Appellant failed
          to satisfy the governmental interference exception to the
          PCRA’s one-year time bar?]

       2. Whether the PCRA court erred in not holding an evidentiary
          hearing where Appellant’s PCRA [petition] contained multiple
          claims that go to the legality of the sentence and are non-
          waivable?

       3. [Whether the PCRA court erred in not granting Appellant
          leave to amend his first PCRA petition?]

Appellant’s Brief at 4-5.12

       We begin with Appellant’s challenge to the PCRA court’s November 16,

2016 order dismissing his first PCRA petition. “Crucial to the determination

of any PCRA appeal is the timeliness of the underlying petition. Thus, we

must first determine whether the [first] PCRA petition was timely filed.”

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (citation

omitted). The timeliness requirement for PCRA petitions “is mandatory and

jurisdictional in nature[.]” Commonwealth v. Brown, 143 A.3d 418, 420
____________________________________________


11The PCRA court did not order Appellant to file a concise statement of
matters complained of on appeal. See Pa.R.A.P. 1925(b).

12 Appellant makes other arguments in his supplemental brief and amended
supplemental brief. Those arguments, however, are waived. See Pa.R.A.P.
2116(a) (“No question will be considered unless it is stated in the statement
of questions involved or is fairly suggested thereby.”).



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(Pa. Super. 2016) (citation omitted). Hence, we concentrate our attention

on whether Appellant timely filed his first PCRA petition and, if not, whether

he has raised a viable statutory exception to the PCRA’s timeliness

requirement.

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[A]

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”   42 Pa.C.S.A. § 9545(b)(3).      Appellant’s judgment of sentence

became final on December 26, 2012.         Appellant’s first PCRA petition was

filed on March 23, 2016. Thus, the petition was patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

      (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.




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42 Pa.C.S.A. § 9545(b)(1)(i-iii).13 If an exception applies, a PCRA petition

may be considered if it is filed “within 60 days of the date the claim could

have been presented.”         42 Pa.C.S.A. § 9545(b)(2).    “It is the petitioner’s

burden to plead and prove an exception to the PCRA-timeliness rule.”

Commonwealth v. Wiley, 966 A.2d 1153, 1158 (Pa. Super. 2009) (citation

omitted).

       As noted above, a petitioner must plead and prove the existence of a

timeliness exception in order for a PCRA court to have jurisdiction over an

untimely petition. Failure to plead and prove the applicability of a timeliness

exception in the PCRA petition renders the PCRA court without jurisdiction to

consider the merits of the petition.           See Commonwealth v. Derrickson,

923 A.2d 466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa.

2007). In this case, Appellant’s PCRA petition only included a bald assertion

that he satisfied one or more of the three statutory exceptions to the PCRA’s

one-year time bar. PCRA Petition, 3/23/16, at 6-7. Such a bald assertion,

without a single factual averment in support thereof, is insufficient to plead

and prove the applicability of a timeliness exception.        As such, the PCRA

court correctly determined that Appellant failed to plead and prove the

applicability of a timeliness exception and that it lacked jurisdiction to reach

____________________________________________


13Contrary to Appellant’s arguments, there is no equitable exception to the
PCRA’s one-year time bar. Commonwealth v. Smallwood, 155 A.3d
1054, 1060 (Pa. Super. 2017).



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the merits of Appellant’s first PCRA petition.   Accordingly, Appellant is not

entitled to relief on his first two claims of error respecting the November 16,

2016 order.

      Appellant also argues that the PCRA court erred in denying his request

to amend his first PCRA petition.     Appellant included this request in his

response to the PCRA court’s Rule 907 notice.      We review a PCRA court’s

denial of leave to amend a PCRA petition for an abuse of discretion.      See

Commonwealth v. Keaton, 45 A.3d 1050, 1060 n.3 (Pa. 2012); see also

Pa.R.Crim.P. 905(A) (A PCRA court “may grant leave to amend or withdraw

a [PCRA petition] at any time.      Amendment shall be freely allowed to

achieve substantial justice.”).    At the time the PCRA court ruled on

Appellant’s request, amendment of his first PCRA petition would have been

futile as it was patently untimely and Appellant failed to make sufficient

averments that he satisfied a statutory exception to the PCRA’s one-year

time bar.   Accordingly, we conclude that the PCRA court did not abuse its

discretion in denying Appellant leave to amend his first PCRA petition.

      Turning to the August 21, 2017 order dismissing Appellant’s second

PCRA petition, the PCRA court properly determined that it lacked jurisdiction

over that petition. As this Court recently explained, a PCRA court does not

have jurisdiction to consider a subsequent PCRA petition when an appeal

from a prior PCRA petition is pending.     Commonwealth v. Montgomery,

2018 WL 1311961, *4 (Pa. Super. Mar. 14, 2018) (en banc). In this case,


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the appeal from the PCRA court’s November 16, 2016 order was pending

before this Court at the time Appellant filed his second PCRA petition. Thus,

the PCRA court lacked jurisdiction over the second petition and properly

dismissed the petition without an evidentiary hearing.

     Appellant’s application for relief denied. Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2018




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