J-S83026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EDMUND ARTHUR GRENIER JR.                :
                                          :
                     Appellant            :   No. 744 WDA 2018

                 Appeal from the PCRA Order April 6, 2018
   In the Court of Common Pleas of Jefferson County Criminal Division at
                     No(s): CP-33-CR-0000045-2014,
                         CP-33-CR-0000171-2015


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 27, 2019

      Appellant, Edmund Arthur Grenier, Jr., appeals pro se from the April 6,

2018 order that denied his third petition filed pursuant to the Post Conviction

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

      In disposing of Appellant’s appeal from the denial of his first PCRA

petition, a prior panel of this Court provided relevant background in this

matter as follows:

      On March 5, 2014, the Commonwealth filed an Information at
      lower court docket number CP-33-CR-0000045-2014, charging
      Appellant with various crimes in connection with his failure to
      order, deliver, or install various grave site markers, which had
      been paid in full by the victims. On July 2, 2014, Appellant, who
      was represented by counsel, proceeded to a guilty plea hearing at
      which he entered a negotiated guilty plea to five counts of
      deceptive business practices, 18 Pa.C.S.A. § 4107(a)(2). The
      Commonwealth indicated that, in exchange for Appellant’s plea,
      the parties had agreed that Appellant would receive a sentence of
      five years’ probation on each count, to run concurrently to each
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     other, and after three years, assuming he had made full
     restitution, early release would be considered. N.T. 7/2/14, at 2.
     The trial court accepted the parties’ plea agreement and
     sentenced Appellant in accordance therewith on that same date.
     Appellant did not file a direct appeal.

            On April 10, 2015, new charges were filed against Appellant
     with regard to various crimes in connection with his failure to
     order, deliver, or install grave site markers as to new victims, and
     the Commonwealth filed an Information at lower court docket
     number CP-33-CR-0000171-2015.               Appellant, who was
     represented by counsel, entered a negotiated guilty plea on
     July 13, 2015, to two counts of deceptive business practices. The
     Commonwealth indicated that, in exchange for Appellant’s guilty
     plea, the parties had agreed that Appellant would receive a
     sentence of time served to twenty-four months less one day, to
     be followed by eight years and one day of probation, as to each
     count; the sentences to run concurrently. N.T., 7/13/15, at 3.
     The trial court accepted the parties’ plea agreement and
     sentenced Appellant in accordance therewith on that same date.
     Appellant did not file a direct appeal; however, on May 12, 2016,
     he filed a timely pro se PCRA petition as to lower court docket
     number CP-33-CR-0000171-2015. See 42 Pa.C.S.A. § 9545(b).
     The PCRA court appointed counsel, who filed an amended petition
     on Appellant’s behalf.

            As to lower court docket number CP-33-CR-0000045-2014,
     Appellant, who was represented by counsel, proceeded to a
     probation revocation hearing. At the hearing, the trial court
     determined that Appellant’s new convictions from lower court
     docket number CP-33-CR-0000171-2015 constituted a violation
     of his probation, and accordingly, the trial court revoked
     Appellant’s probation at lower court docket number CP-33-CR-
     0000045-2014. The trial court then sentenced Appellant to five
     years to ten years in prison as to each count, the sentences to run
     consecutively. Thus, Appellant was sentenced to an aggregate of
     twenty-five years to fifty years in prison. Appellant filed an appeal
     to this Court from the September 16, 2015, probation revocation
     sentence, and on October 6, 2016, this Court affirmed. See
     Commonwealth v. Grenier, No. 1626 WDA 2015 (Pa.Super.
     filed 10/6/16) (unpublished memorandum). Appellant did not file
     a petition for allowance of appeal to our Supreme Court; however,
     on November 18, 2016, Appellant filed a timely pro se PCRA


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       petition, and the PCRA court appointed counsel. See 42 Pa.C.S.A.
       § 9545(b).

              On November 4, 2016, Appellant proceeded to a PCRA
       evidentiary hearing at which Appellant and guilty plea counsel
       testified. By order entered on February 9, 2017, the PCRA court,
       indicating Appellant’s cases were related, sua sponte consolidated
       Appellant’s PCRA petitions filed at lower court docket numbers CP-
       33-CR-0000045-2014 and CP-33-CR-0000171-2015.

              On May 9, 2017, the PCRA court held an additional PCRA
       evidentiary hearing at which Appellant and guilty plea counsel
       testified. By order and opinion entered on May 18, 2017, the PCRA
       court denied the PCRA petitions filed in both cases.

Commonwealth v. Grenier, 181 A.3d 417, 858 and 859 WDA 2017 (Pa.

Super. filed November 15, 2017) (unpublished memorandum at 2-5)

(footnotes omitted).1       After review, this Court affirmed the order denying

Appellant PCRA relief. Id. at 14. Appellant did not pursue allowance of appeal

to our Supreme Court.

       We now must address the procedural morass of Appellant’s subsequent

pro se PCRA filings. On December 7, 2017, Appellant filed a second PCRA

petition at trial court docket numbers CP-33-CR-45-2014 and CP-33-CR-171-




____________________________________________


1  As noted, the PCRA court consolidated Appellant’s PCRA petitions filed at
trial court docket numbers CP-33-CR-45-2014 and CP-33-CR-171-2015 on
February 9, 2017. However, following the entry of the PCRA court’s May 9,
2017 order dismissing Appellant’s PCRA petitions, Appellant filed separate
notices of appeal on June 9, 2017. This Court consolidated the appeals from
the denial of Appellant’s first PCRA petitions sua sponte on July 1, 2017.




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2015.2 On December 11, 2017, the PCRA court provided Appellant notice of

its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907, and on January 12, 2018, the PCRA court dismissed Appellant’s second

PCRA petition.3 However, Appellant filed documents purporting to amend his

second PCRA petition.         This amended petition was marked as filed and

docketed in the PCRA court on January 16, 2018. Appellant attached to the

petition a Postage Order and Receipt indicating that the petition was placed in

the prison mail on January 10, 2018. Pursuant to the prisoner mailbox rule,

a pro se filing by a prisoner is deemed filed on the date he delivers it to prison

authorities for mailing. Commonwealth v. Johnson, 192 A.3d 1149, 1152

n.4 (Pa. Super. 2018).        Accordingly, we deem Appellant’s amended PCRA

petition filed on January 10, 2018, because Appellant was incarcerated when

he filed these documents.         We note that PCRA courts are vested with the


____________________________________________


2  The underlying criminal cases appear at trial court docket numbers CP-33-
CR-45-2014 and CP-33-CR-171-2015. Following the April 6, 2018 order that
disposed of the PCRA petitions underlying the instant appeal, Appellant filed
notices of appeal at both docket numbers. We reiterate that this Court and
the PCRA court have consolidated these matters previously and treated them
as a single matter. Moreover, when Appellant filed the instant appeals, this
Court docketed them at a single docket number, 744 WDA 2018. In an effort
to dispel any confusion, we are treating this matter as a single consolidated
appeal, and our disposition herein is final as to both CP-33-CR-45-2014 and
CP-33-CR-171-2015.

3 Appellant did not appeal from the January 12, 2018 order denying his second
PCRA petition.




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discretion to permit amendments to a pending, timely-filed4 PCRA petition.

Commonwealth v. Flanagan, 854 A.2d 489, 499-500 (Pa. 2004). However,

the PCRA court found that Appellant’s second PCRA petition was untimely.

Pa.R.Crim.P. 907 Notice, 12/11/17; Order, 1/12/18.          Additionally, it is

axiomatic that the PCRA court had not received Appellant’s amended petition

prior to filing its order dismissing Appellant’s second PCRA petition. Thus, we

conclude that the PCRA court correctly treated Appellant’s amended PCRA

petition as a third PCRA petition.

       However, we are constrained to point out that on January 10, 2018, the

date we deem Appellant’s third PCRA petition filed, his second PCRA petition

remained pending. It is well settled that “a subsequent PCRA petition cannot

be filed until the resolution of review of the pending PCRA petition by the

highest state court in which review is sought, or upon the expiration of the

time for seeking such review.” Commonwealth v. Montgomery, 181 A.3d

359, 363 (Pa. Super. 2018) (en banc) (quoting Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000)). Although this holding does not preclude a PCRA

court from granting leave to amend a PCRA petition that is currently pending,

Lark, 746 A.2d 588 n.2, Appellant did not pursue nor was he granted leave

to amend. Because Appellant did not file an appeal from the January 12, 2018

order denying his second PCRA petition, and the time in which Appellant could

____________________________________________


4   We discuss the PCRA timing and filing requirements infra.



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have filed an appeal expired thirty days later on February 11, 2018,5 that is

the earliest date upon which we may deem Appellant’s third PCRA petition

filed. Lark, 746 A.2d 588.

       On February 27, 2018, the PCRA court, pursuant to Pa.R.Crim.P. 907,

provided Appellant notice of its intent to dismiss Appellant’s third PCRA

petition without a hearing.         On April 6, 2018, the PCRA court dismissed

Appellant’s third petition, and this timely appeal followed.    Both the PCRA

court and Appellant complied with Pa.R.A.P. 1925.

       On appeal, Appellant raises the following issue:

       Whether the [PCRA] court committed [an] error of law when it
       dismissed Appellant’s second and third PCRA petitions as
       untimely.

Appellant’s Brief at 9 (full capitalization omitted).

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA court’s

determination is free of legal error. Commonwealth v. Staton, 184 A.3d

949 (Pa. 2018). We consider the record in the light most favorable to the

prevailing party in the PCRA court. Commonwealth v. Mason, 130 A.3d

601, 617 (Pa. 2015). We grant great deference to the PCRA court’s findings

that are supported in the record and will not disturb them unless they have




____________________________________________


5   Pa.R.A.P. 903.

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no support in the certified record. Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

       The PCRA court concluded that Appellant’s third PCRA petition was

untimely. Order, 4/6/18. The timeliness of a PCRA petition is a jurisdictional

threshold that may not be disregarded in order to reach the merits of the

claims raised in a PCRA petition that is untimely.       Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,

753 A.2d 201, 203 (Pa. 2000)). A judgment of sentence “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. § 9545(b)(3).

       This Court affirmed Appellant’s judgment of sentence on October 6,

2016. Appellant did not file a petition for allowance of appeal to our Supreme

Court, and therefore, his judgment of sentence became final on November 5,

2016. 42 Pa.C.S. § 9545(b)(3). Thereafter, Appellant had one year, or until

November 6, 2017,6 to file a timely PCRA petition. 42 Pa.C.S. § 9545(b)(1).




____________________________________________


6 November 5, 2017, fell on a Sunday. Thus, Appellant had until Monday,
November 6, 2017, to file a timely PCRA petition. See 1 Pa.C.S. § 1908 (when
the last day of any period of time referred to in a statute falls on Saturday,
Sunday, or a legal holiday, that day is omitted from computation).



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As discussed above, we must deem Appellant’s third PCRA petition filed on

February 11, 2018.7 Thus, Appellant’s PCRA petition is patently untimely.

       An untimely petition nevertheless 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. § 9545(b)(1)(i), (ii), and

(iii), is met.8 A petition invoking one of these exceptions must be filed within

one year from the date the claim could first have been presented. 42 Pa.C.S.

§ 9545(b)(2).9        The PCRA petitioner bears the burden of proving the



____________________________________________


7 We note that even if we were to utilize January 10, 2018, the date Appellant
placed his third PCRA petition in the prison mail as the filing date, it would be
of no moment, and we would still conclude that Appellant’s petition was
facially untimely.

8   The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).

9 42 Pa.C.S. § 9545(b)(2) was amended effective December 24, 2018, and
applies to claims arising on December 24, 2017, or thereafter.

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applicability of one of the exceptions. Commonwealth v. Edmiston, 65 A.3d

339, 346 (Pa. 2013).

      First, we briefly address Appellant’s assertion that the PCRA court erred

in dismissing his second PCRA petition. As noted above, Appellant did not

appeal this ruling. To the extent that Appellant instantly purports to appeal

from the January 12, 2018 order denying his second PCRA petition, we note

that the appeal at bar was filed more than thirty days later on April 16, 2018,

rendering it untimely. Pa.R.A.P. 903. Absent instances of fraud or breakdown

in the operation of the court, which are not present here, any challenge to the

denial of Appellant’s second PCRA petition is untimely and not properly before

this Court. See Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super.

2007) (holding that, absent certain breakdowns in court operations or fraud,

the Superior Court has no jurisdiction to entertain an untimely appeal).

      Next, Appellant avers that the PCRA court erred in dismissing his third

PCRA petition as untimely.    Appellant argues that his third PCRA petition

should be deemed timely pursuant to the newly discovered facts exception to

the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(ii). Appellant’s Brief at 15.

      Appellant states that prior to Christmas of 2017, he received a holiday

card from a friend. Appellant’s Brief at 17. This card contained a newspaper

article that reported Appellant’s ex-wife, Brenda Grenier’s, involvement in

crimes similar to Appellant’s such as taking money from customers for plaques

and headstones but failing to deliver them.      These crimes occurred at a


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cemetery Appellant owned, and the article revealed that Ms. Grenier pled

guilty to theft by deception, among other things. Id. at 17; Appendix C-6.

The news article was published in March of 2017, and Appellant claims that

this is a previously unknown fact and an exception to the timeliness

requirements of the PCRA. Id. at 17. Appellant avers that the article reveals

the culpability of Ms. Grenier in crimes with which he was charged and

convicted. Id. at 22. Appellant asserts that he filed his third PCRA petition

within sixty days10 of the date that he learned of the newspaper article. Id.

at 17 n.1. Therefore, Appellant argues he satisfied the newly discovered facts

exception pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). We disagree.

       In its notice of intention to dismiss Appellant’s third PCRA petition, the

PCRA court addressed Appellant’s issue as follows:

             In support of his contention that the newly discovered facts
       exception excuses his failure to file these petitions within a year
       of when his judgment of sentence became final, [Appellant]
       submits a series of documents. Some pertain to his ex-wife’s
       criminal charges, which were similar to his own and finally
       disposed of, according to him, in March of 2017. The others
       included Dr. Vernon Preston’s notes regarding his Alzheimer’s and
       Dr. Louis S. Marton’s report on the psychiatric evaluation he
       underwent on November 18, 2016.              Neither category of
       documents evidences facts about which [Appellant] did not know
       or could not reasonably have learned sooner than November 17,
____________________________________________


10 We reiterate that 42 Pa.C.S. § 9545(b)(2) no longer limits the time period
for raising an exception to the PCRA time bar to sixty days from the time it
could have been raised; rather, it allows a period of one year. However,
pertinent to our discussion, this extension of time in which to file an exception
does nothing to negate the due diligence requirement of 42 Pa.C.S.
§9545(b)(1)(ii).



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       2017. See 42 Pa. C.S.A. § 9545(b)(1)(ii) (saying that the facts
       upon which the claim is predicated must have been unknown to
       [Appellant] and could not have been ascertained by the exercise
       of due diligence), and § 9545(b)(2) (saying that any petition
       invoking an exception must be filed within 60 days[11] of when the
       claim first could have been presented).

              [Appellant] and his ex-wife owned and operated Crown
       Crest Memorial Park together, which meant he had full access to
       its accounts and thus was always in a position to know whether
       they were being appropriately managed. As he plainly admitted
       in the final page of his “Overview of Evidence,” moreover, he knew
       as early as 2012 that customers were not receiving the memorials
       they had paid for and was suspicious enough of his ex-wife by
       2014 that he removed her as an officer of the corporation. It was
       that same year, he indicated, that she wiped out the memorial
       accounts. It is clear from his own rendition of facts, therefore, that
       [Appellant] was well aware years ago that his ex-wife was
       mismanaging the business. That he chose not to take the steps
       necessary to ascertain the full extent of her duplicity does not
       mean it was undiscoverable at a much earlier point in time.

              Even were the Court to give [Appellant] the benefit of the
       doubt in that regard, the fact that his ex-wife was charged in
       Clearfield County in 2016 defeats his claim that her criminality
       was a “newly discovered fact” for purposes of the Post Conviction
       Relief Act. He had access even from prison to what was filed in
       Clearfield County and could have easily determined the nature and
       extent of the charges against her at or around the time they were
       filed. It does not escape the Court’s notice, moreover, that
       [Appellant] was able to access and attach to his “amended”
       petitions a copy of the Progress article detailing his ex-wife’s
       conviction. That article, he indicated, was published in March of
       2017, which means it was available long before he “discovered”
       and attempted to utilize it. Plainly, then, his ex-wife’s conviction
       does not provide grounds for the timeliness exception articulated
       in § 9545(b)(1)(ii).

             The same is true with respect to the proffered medical
       records and psychiatric report, all of which date back to 2016. In
       addition, [Appellant] relied on his dementia diagnosis to support
____________________________________________


11   As noted above, it is now one year. 42 Pa.C.S. § 9545(b)(2).

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      his first PCRA petition. He referred to it repeatedly in the petition
      itself and testified at length at his PCRA hearing about its actual
      and presumed effects on his decision to plead guilty. He cannot
      legitimately claim, therefore, that he only became aware of his
      condition and its attendant cognitive deficits within 60 days of
      filing the instant petitions.

Notice of Intention to Dismiss Third PCRA Petition, 2/27/18, at 1-2.

      As noted, Appellant alleges myriad reasons for his failure to timely learn

of his ex-wife’s thefts. These include an alleged diagnosis of dementia and

Alzheimer’s disease and a lack of access to public records, which is why he

was unaware of the March 2017 article. Appellant’s Brief at 20. However, as

the PCRA court concludes, the record reveals that Appellant was aware of his

ex-wife’s involvement in deceptive practices, or was at least suspicious, as

early as 2014 when he removed her as an officer of the corporation.           We

conclude that through the exercise of due diligence, which is required under

Section 9545(b)(1)(ii), Appellant could have discovered Ms. Grenier’s

involvement in criminal activity. Moreover, we are constrained to point out

that nothing in this news article exonerates Appellant; it inculpates his ex-wife

in criminal acts that are similar, if not identical, to his own crimes. Nothing in

this article affords Appellant relief under the PCRA. Accordingly, we discern

no error or abuse of discretion in the PCRA court dismissing Appellant’s third

PCRA petition as untimely.

      Because Appellant’s PCRA petition was untimely and no exceptions

apply, the PCRA court lacked jurisdiction to address the issues presented and

grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

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2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition.   See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”). Therefore, the order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2019




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