J-S31018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                          Appellee

                     v.

JOSEPH W. BURCH

                          Appellant                  No. 1351 WDA 2018


          Appeal from the PCRA Order entered September 4, 2018
             In the Court of Common Pleas of Crawford County
             Criminal Division at No: CP-20-CR-0000570-2008


BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 27, 2019

      Appellant, Joseph W. Burch, pro se appeals from the September 4, 2018

order of the Court of Common Pleas of Crawford County, dismissing as

untimely his petition for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The factual and procedural backgrounds of the instant appeal are

undisputed. Briefly, on November 3, 2008, Appellant pled guilty to aggravated

indecent assault of a child.   On January 5, 2009, Appellant pled guilty to

prohibited offensive weapons, and possession of drug paraphernalia. On

February 26, 2009, the trial court sentenced Appellant to 120 to 240 months’

imprisonment for the aggravated indecent child assault conviction and 14 to

60 months’ imprisonment for the prohibited offensive weapons and

paraphernalia convictions. Appellant did not file a direct appeal.
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       Appellant filed his first PCRA petition on October 18, 2010. As explained

below, the PCRA court denied relief upon finding the petition untimely. We

affirmed that ruling on March 8, 2013, and the Supreme Court denied

Appellant’s petition for allowance of appeal on August 15, 2013. Appellant

filed his second petition on September 18, 2013. The PCRA court dismissed

it as untimely on October 28, 2013. No appeal was taken. Appellant filed his

third petition on August 5, 2014. The PCRA court dismissed it as untimely on

September 16, 2014. We affirmed the dismissal on November 6, 2015. No

further appeal was taken. Appellant filed his fourth PCRA petition on August

28, 2017. The PCRA court denied relief. We affirmed on June 15, 2018. The

instant PCRA petition, Appellant’s fifth, was filed on July 23, 2018. The PCRA

court denied relief on September 4, 2018. This appeal followed.

       In his fifth PCRA petition, Appellant argues that the timeliness of the

petition is met under Section 9545(b)(1)(i), (ii), and (iii). See PCRA Court

Opinion, 8/10/18, at 5-6. Specifically, Appellant argues that the petition is

timely under the governmental interference exception (in the form of his

counsel’s unjustified failure to file a requested appeal), the newly-discovered

facts exception (in the form of recent discovery of the Muniz1 decision, which,

in Appellant’s view, rendered his sentence illegal), and (iii) the newly

recognized constitutional rights exception (as established in Commonwealth

v. Rivera-Figueroa, 174 A3d 674, 678 (Pa. Super. 2017)).

____________________________________________


1   Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

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       On appeal, however, Appellant abandons those three grounds, and

instead argues the instant petition is timely under the newly-discovered fact

exception, namely the same “newly-discovered” fact described in his first

PCRA petition,2 that PCRA counsel was ineffective for not arguing the

exception, and that our decision on the first PCRA petition was incorrect

because we misunderstood the facts supporting the alleged exception.

Appellant’s Brief at 7-13. We disagree.

       All PCRA petitions, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

§ 9545(b)(1). The one-year time limitation, however, can be overcome if a

petitioner (1) alleges and proves one of the three exceptions set forth in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this

exception within one year of the date the claim could have been presented.

42 Pa.C.S.A. § 9545(b)(2).3
____________________________________________


2 In his first PCRA petition, Appellant argued that his petition was timely under
the newly-discovered fact exception (i.e., discovery of credibility of issues
involving the forensic nurse who questioned the victim), and that PCRA
counsel was ineffective for not pursuing the matter. The PCRA court disagreed
and dismissed Appellant’s first PCRA petition as untimely. PCRA Court Order,
7/5/12. On appeal, we agreed with the PCRA’s court assessment. See
Commonwealth v. Burch, 1198 WDA 2012, unpublished memorandum (Pa.
Super. filed March 8, 2013). Appellant’s petition for allowance of appeal was
denied on August 15, 2013.

3Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2017.




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        “The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a

PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.”          Commonwealth v.

Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal

citations and quotation marks omitted). As timeliness is separate and distinct

from the merits of Appellant’s underlying claims, we first determine whether

this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d

306, 310 (Pa. 2008) (consideration of Brady4 claim separate from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the legality

of the sentence.      See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.

2007) (“Although legality of sentence is always subject to review within the

PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999)).

        The instant petition is facially untimely and Appellant has failed to

establish the applicability of any exception to the time-bar. To the extent

Appellant relies on the same newly-discovered fact he relied upon in

connection with his first PCRA petition, we conclude that he is entitled to no

relief as the matter has been already litigated. See 42 Pa.C.S.A. § 9544(a).

____________________________________________


4   Brady v. Maryland, 373 U.S. 83 (1963).

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To the extent that Appellant laments counsel’s ineffectiveness for the outcome

of the first PCRA petition, we conclude that discovery of counsel’s

ineffectiveness does not save an otherwise untimely PCRA petition. See, e.g.,

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 2000);

Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (claims of counsel’s

ineffectiveness do not escape the PCRA’s one-year time limitation merely

because they are presented in term of current’s counsel discovery of the fact);

Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (couching argument in

terms of ineffectiveness cannot save a petition that does not fall into exception

to time-bar).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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