J-S18040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                      v.

ARIE OREN

                                     Appellant             No. 3137 EDA 2016


               Appeal from the PCRA Order September 13, 2016
     in the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0002955-2011

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                              FILED MARCH 30, 2017

        Appellant, Arie Oren, appeals pro se from the order dismissing his

second petition for relief under the Post Conviction Relief Act 1 (“PCRA”) as

untimely.       Appellant   claims    that   his   prior   counsels’   ineffectiveness

constituted interference by government officials or previously unknown facts.

See 42 Pa.C.S. § 9545(b)(1)(i)-(ii). We affirm.

        The procedural history of this case is as follows.       On September 13,

2012, a jury found Appellant guilty of four counts of aggravated indecent

assault2 and five counts of indecent assault without consent.3               J. David


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 3125(a)(1).
3
    18 Pa.C.S. § 3126(a)(1).
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Farrell Esq. (“trial counsel”) represented Appellant at trial, but withdrew

from representation on November 7, 2012. Timothy Woodward, Esq. (“post-

trial counsel”), entered his appearance on behalf of Appellant on November

13, 2012. On February 14, 2013, the trial court sentenced Appellant to an

aggregate four-and-one-half to nine years’ imprisonment. Appellant did not

file post-sentence motions and did not take a direct appeal.

          On July 8, 2013, Daniel Silverman, Esq. (“prior PCRA counsel”), filed a

first PCRA petition on Appellant’s behalf.        The PCRA court, following an

evidentiary hearing, denied relief on July 1, 2014.         This Court affirmed.

Commonwealth v. Oren, 1940 EDA 2014 (Pa. Super. July 30, 2015)

(unpublished memorandum).           Appellant did not petition the Pennsylvania

Supreme Court for allowance of appeal.

          On July 25, 2016, Appellant filed the instant second PCRA petition pro

se, raising six claims alleging trial error or the ineffective assistance of trial

counsel.      On August 15, 2016, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition as untimely. On August 25, 2016,

Appellant filed a pro se response alleging that he exercised due diligence in

discovering the alleged constitutional violations underlying his claims for

relief.    The court dismissed Appellant’s second petition on September 13,

2016. This timely appeal followed.

          In his pro se brief, Appellant raises numerous claims of error, in which

he, in relevant part, asserts prior PCRA counsel’s ineffectiveness for



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addressing “some issues that [Appellant] brought up, but in the P.C.R.A.

they were very limited in the arguments and key arguments were never

raised.” Appellant’s Brief at 7. He suggests he declined to file a petition for

allowance of appeal in the first PCRA proceeding based on prior PCRA

counsel’s representation that “the arguments he raised had a low probability

of being granted.” Id. He further argues his right to a direct appeal was

obstructed    by   government     officials,   namely,   post-trial   counsel’s

ineffectiveness. Id. at 8-9. He continues that he is entitled to consideration

of the merits of his claims because he sets forth a credible claim of actual

innocence and “had no prior knowledge of any of the constitutional violations

listed in his [PCRA petition].” Id. at 10-11. After reiterating his substantive

claims for relief, Appellant concludes that he is entitled to file a PCRA

petition, or in the alternative, to a new trial or release from custody. Id. at

12-21. No relief is due.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”       Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has 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


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         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). We have also held that even where
         the PCRA court does not address the applicability of the
         PCRA timing mandate, th[e] Court will consider the issue
         sua sponte, as it is a threshold question implicating our
         subject matter jurisdiction and ability to grant the
         requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (some

citations and parallel citations omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”      Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).          The three

exceptions to the general one-year time limitation 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.


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42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      As discussed by the Pennsylvania Supreme Court,

          [i]n [Commonwealth v. Gamboa-Taylor, 753 A.2d 780,
          785 (Pa. 2000)] and subsequent cases, we addressed
          situations when PCRA counsel had allegedly ineffectively
          narrowed the class of claims raised by not including all of
          the viable claims in the first petition. In such instances,
          we concluded that by allowing the claim to go forward “the
          timeliness requirements crafted by the legislature would
          thus effectively be eviscerated by any petitioner who was
          willing to file serial PCRA petitions alleging ineffective
          assistance of counsel.” Thus, we firmly rejected any such
          attempts “to circumvent the one-year time limitation” via
          claims of PCRA counsel ineffectiveness.

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (some

citations omitted).      Similarly, the PCRA directs that “defense counsel,

whether appointed or retained[,]” are not “government officials” for the

purpose    of    the   governmental   interference   exception   under   Section

9545(b)(1)(i). 42 Pa.C.S. § 9545(b)(4).

      Instantly, there is no dispute that Appellant’s second PCRA petition,

which was mailed bearing a postage date of September 22, 2016, was not

filed by March 18, 2014, when the one-year period for filing a facially timely

PCRA petition expired.       See 42 Pa.C.S. § 9545(b)(1), (3); Pa.R.A.P.

903(c)(3).      Having reviewed the record, we agree with the PCRA court’s

determination that Appellant failed to plead a time-bar exception in either

his pro se petition or response to the court’s Rule 907 notice. Appellant’s

reliance on prior counsels’ ineffectiveness fails to state a time-bar exception



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under Section 9545(b)(1)(i) or (b)(1)(ii).   See 42 Pa.C.S. § 9545(b)(4);

Bennett, 930 A.2d at 1272.        Lastly, although Appellant asserts he was

dissuaded from filing a petition of allowance of appeal from this Court’s

affirmance of the order denying his first PCRA petition, his assertions

establish that prior PCRA counsel did not abandon him. See Bennett, 930

A.2d at 1273; Appellant’s Brief at 7 (indicating prior PCRA counsel informed

Appellant that there was a low probability that the Pennsylvania Supreme

Court would grant relief and Appellant agreed not to file a petition for

allowance of appeal).     Thus, we affirm the PCRA court’s order dismissing

Appellant’s second PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2017




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