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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                    v.                    :
                                          :
NATHANIEL LAMONT DUCK, JR.,               :          No. 524 WDA 2015
                                          :
                           Appellant      :


                   Appeal from the PCRA Order, March 4, 2015,
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos. CP-02-CR-0002921-2012,
                             CP-02-CR-0005091-2012


BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED APRIL 4, 2016

        Nathaniel Lamont Duck, Jr. appeals pro se from the order filed in the

Court of Common Pleas of Allegheny County which dismissed, without a

hearing, his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.          Because we agree with the PCRA

court that appellant’s facially untimely petition failed to establish a statutory

exception to the one-year jurisdictional time limit for filing a petition under

the PCRA, we affirm.

        The PCRA court set forth the following procedural history:

                   [Appellant] was charged at CC 201205091 with
             Rape,[Footnote 1] Involuntary Deviate Sexual
             Intercourse,[Footnote 2] Unlawful Contact with a
             Minor,[Footnote    3]   Incest,[1] Explicit Sexual

1
    18 Pa.C.S.A. § 4302.
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            Materials to a Minor,[Footnote 4] Endangering the
            Welfare of a Child,[Footnote 5] Corruption of
            Minors[Footnote 6] and Indecent Assault[Footnote 7]
            and at CC 201202921 with Rape, Involuntary
            Deviate Sexual Intercourse, Unlawful Contact with a
            Minor, Incest, Indecent Assault and Corruption of
            Minors in relation to a series of assaults on his 16
            year old daughter. He appeared before this Court on
            May 9, 2013 and, pursuant to a plea agreement with
            the Commonwealth as to sentencing only, pled guilty
            to all charges.    He was sentenced to two (2)
            concurrent terms of imprisonment of five (5) to
            20 years at each of the Rape charges.             No
            Post-Sentence Motions were filed and no direct
            appeal was taken.

                  [Footnote   1]   18   Pa.C.S.A.   §   3121(a)(1)
                  [Footnote   2]   18   Pa.C.S.A.   §   3123(a)(1)
                  [Footnote   3]   18   Pa.C.S.A.   §   6318(1)
                  [Footnote   4]   18   Pa.C.S.A.   §   5903(c)
                  [Footnote   5]   18   Pa.C.S.A.   §   4304
                  [Footnote   6]   18   Pa.C.S.A.   §   6301(a)(1)
                  [Footnote   7]   18   Pa.C.S.A.   §   3126(a)(1)

                   No further action was taken until August 20,
            2014, when [appellant] filed a [pro se] [PCRA]
            Petition.    Counsel was appointed to represent
            [appellant], but later filed a [Turner2] “no-merit”
            letter and was granted permission to withdraw from
            the representation.     After giving the appropriate
            notice, this Court dismissed the Petition without a
            hearing on March 4, 2015. This appeal followed.

                  In support of his appeal, [appellant] has filed a
            Concise Statement of Matters Complained of on
            Appeal. However, the document does not actually
            specify any issues to be raised and in fact is wholly
            unintelligible. Nevertheless, the record reflects that
            the Petition is untimely and this Court cannot discern
            averments of any exceptions to the time limitation
            provisions of the [PCRA] and this Court properly
            dismissed the Petition as untimely.

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


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PCRA court opinion, 7/20/15 at 1-2.

         Appellant raises nine issues for our review.    In Issue 1, appellant

alleges that the trial court abused its discretion “by failing to provide the

requested discovery and blatantly try [sic] to ignore it vandictively [sic].”

(Appellant’s brief at 6.)    Issues 2, 3, 4, 5, 6, 7, and 8 allege ineffective

assistance of trial counsel. (Id.) Issue 9 appears to be an attempt to raise

a newly discovered evidence claim. (Id.)

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

         Here, the trial court sentenced appellant on May 9, 2013. Appellant

failed to file a direct appeal to this court, and consequently, appellant’s


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judgment of sentence became final on June 10, 2013, 30 days after

imposition of sentence and the time for filing a direct appeal expired.3 See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69

A.3d 759, 763 (Pa.Super. 2013).          Therefore, appellant’s petition, filed

August 20, 2014, is facially untimely.       As a result, the PCRA court lacked

jurisdiction to review appellant’s petition, unless appellant alleged and

proved one of the statutory exceptions to the time bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time bar are:          when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.     42     Pa.C.S.A.   §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).




3
 We note that 30 days after the trial court sentenced appellant was June 8,
2013, but that June 8, 2013 was a Saturday.


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      Here, although appellant fails to allege the applicability of an exception

in his Issues 1 through 8, he baldly alleges his entitlement to relief under the

newly discovered evidence exception set forth in § 9545(b)(1)(ii) in his

Issue 9.

      In   analyzing   a   claim   of    newly   discovered   evidence    under

§ 9545(b)(1)(ii), our supreme court in Commonwealth v. Bennett, 930

A.2d 1264, 1271 (Pa. 2007), made clear that the exception set forth in

Subsection (b)(1)(ii) does not require any merits analysis of the underlying

claim. Rather, the exception merely requires that the facts upon which the

claim is predicated must not have been known to appellant and could not

have been ascertained by due diligence. Id. (citation omitted). Therefore,

the plain language of Subsection (b)(1)(ii) is not so narrow as to limit itself

to only claims involving after-discovered evidence.      Id. at 1272.    Rather,

Subsection (b)(1)(ii) has two components, which appellant must allege and

prove:     (1) that the facts upon which the claim was predicated were

unknown and (2) that those facts could not have been ascertained by the

exercise of due diligence. Id. If the petitioner alleges and proves these two

components, then the PCRA court has jurisdiction over the claim under this

subsection. Id. (citation omitted).

      Here, appellant fails to allege any fact upon which his claim is

predicated was unknown to him.          In fact, appellant fails to advance any

argument. Appellant’s brief on this issue merely contains a reference to the



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exception set forth in § 9545(b)(1)(ii).   Therefore, appellant has failed to

satisfy his burden of pleading and proving the applicability of the newly

discovered evidence exception under § 9545(b)(1)(ii), and his petition is

time barred.

      Finally, on February 5, 2016, appellant filed an application for

extension of time to file reply brief, and on February 18, 2016, he filed an

application to file fewer copies of reply brief. We deny both applications.

      Order affirmed.     February 5, 2016 application denied.   February 18,

2016 application denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/4/2016




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