J-S63027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KIMANI J. LOCKHART                         :
                                               :
                       Appellant               :   No. 795 EDA 2019

            Appeal from the PCRA Order Entered February 19, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0000634-2012


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 09, 2019
        Kimani J. Lockhart (Appellant) appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        We previously explained:

        [Appellant] was found guilty by the trial judge of possession with
        intent to distribute a controlled substance (PWID)—cocaine,
        possession of cocaine, possession of drug paraphernalia,
        speeding, and driving under suspension. The trial court sentenced
        [Appellant on February 23, 2015,] to a term of 42 to 90 months’
        imprisonment after this Court vacated his original, mandatory
        minimum sentence.

Commonwealth v. Lockhart, 159 A.3d 55 (Pa. Super. Oct. 25, 2016)

(unpublished memorandum at *1) (footnotes omitted). Appellant did not file

a post-sentence motion or direct appeal, and his February 23, 2015 judgment

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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of sentence became final 30 days later, on March 25, 2015. See 42 Pa.C.S.A.

§ 9545(b)(1).

     Appellant filed a timely PCRA petition on April 6, 2015. The PCRA court

denied relief on November 24, 2015 and Appellant appealed.         This Court

affirmed the denial of PCRA relief on October 25, 2016. Commonwealth v.

Lockhart, supra.

     Appellant filed the underlying pro se PCRA petition, his second, on

December 19, 2018. The PCRA court provided notice of intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907 on January

3, 2019, and on January 28, 2019, Appellant filed an “Objection.” On February

19, 2019, the PCRA court dismissed the petition. Appellant filed this appeal

on March 6, 2019. Both Appellant and the PCRA court have complied with

Pennsylvania Rule of Appellate Procedure 1925.

     Although Appellant does not include in his brief a statement of questions

presented, in his Rule 1925(b) statement he alleges:

           (1)   Is the P.C.R.A. Court bound by “9545”, if it has made
                 a Judicial Error?
           (2)   Did the P.C.R.A. Court use “9545” to avoid correcting
                 a[n] Error that was made when Defendant was
                 Sentenced?
           (3)   Did the P.C.R.A. Court commit a Judicial Error by not
                 comparing Defendant’s Out Of State convictions to
                 Pennsylvania Offenses?
           (4)   Did the P.C.R.A. Court have Jurisdiction to review
                 Defendant’s claim of a Illegal Sentence?
           (5)   Did the P.C.R.A. Court commit a Judicial Error when it
                 ruled that Defendant’s Attorney was not Ineffective?




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             (6)     Was Defense Counsel was [sic] Ineffective for failing to
                     examine Defendants PSI and challenge Defendants
                     Out of State Convictions?

Appellant’s “Statement of Matters Complained to Pa.R.A.P. 1925(b)”, 3/27/19.

     In the summary of his argument, Appellant states:              “BECAUSE THE

TRIAL COURT ALONG WITH APPELLANTS ATTORNEYS FAILED TO PROPERLY

ARTICULATE APPELLANTS (PSI), AN EXCEPTION SHOULD BE GRANTED AND

APPELLANTS CASE SHOULD BE VACATED AND DISMISSED.” Appellant’s Brief

at 6. However, before we address the merits of Appellant’s claims, we must

first address the timeliness of Appellant's petition. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). A

petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment of sentence became final, unless one of the three

statutory 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


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               provided in this section and has been held by that court
               to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).      If a petition is untimely, and the

petitioner has not pled and proven an exception, “‘neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      As explained above, the trial court sentenced Appellant on February 23,

2015 and Appellant did not file a direct appeal. Thus, Appellant’s underlying

PCRA petition, which he filed on December 19, 2018, is untimely, and we lack

jurisdiction unless he has pled and proven one of the three timeliness

exceptions of section 9545(b)(1). Derrickson, supra. Notably, exceptions

to the time bar must be pled in the PCRA petition, and may not be raised

for the first time on appeal. Commonwealth v. Beasley, 741 A.2d 1258,

1261 (Pa. 1999) (emphasis added).

      Instantly, Appellant concedes that his petition is untimely.        See

Appellant’s Brief at 1. Moreover, our review of Appellant’s petition confirms

the PCRA court’s statement that Appellant “alleged no exception to the

timeliness requirements,” as well as the Commonwealth’s statement that

“Appellant did not allege an exception to the timeliness requirements of the

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PCRA to justify the untimeliness of his petition.” PCRA Court Order, 2/19/19,

at 2; Commonwealth Brief at 7. For example, Appellant generally asserts that

he is eligible for relief because of “ineffective assistance of counsel” and the

“imposition of a sentence greater than the lawful maximum.” PCRA Petition,

12/19/18, at 2. The Pennsylvania Supreme Court has stated, “The statute

makes clear that where, as here, the petition is untimely, it is the petitioner’s

burden to plead in the petition and prove that one of the exceptions applies.”

Beasley, 741 A.2d at 1261 (citing 42 Pa.C.S.A. § 9545(b)(1)) (emphasis

added). Thus, Appellant has failed to meet his burden of meeting an exception

to the time-bar.

      We further note that this Court has held that a response to a Rule 907

notice is not a subsequent PCRA petition, and a petitioner must still seek leave

to amend the petition; failing to do so and raising new claims in the Rule 907

response results in waiver. See Commonwealth v. Rykard, 55 A.3d 1177,

1189 (Pa. Super. 2012).      Even in the absence of waiver, to the extent

Appellant asserted in his “Objection” in response to the PCRA court’s Rule 907

notice, an “after discovered evidence” exception to the time-bar, the PCRA

court explained:

      On January 3, 2019, [the court] filed a Notice of Disposition
      without a Hearing to dismiss the instant PCRA Petition based on
      untimeliness. Petitioner then filed an Objection to that Notice on
      January 28, 2019.

            Petitioner’s Objection has now alleged a timeliness
      exception under § 9545(b)(1)(ii).        The “after-discovered”
      evidence exception applies where “the ‘facts’ upon which such a

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     claim is predicated must not have been known to [Petitioner], nor
     could they have been ascertained by due diligence.” Com. v.
     Lambert, 884 A.2d 848, 852 (Pa. 2005). “Section 9545(b)(1)(ii)
     requires a petitioner to allege and prove that there were facts
     unknown to him and that he exercised due diligence in discovering
     those facts.” Com. v. Brown, 111 A.3d 171, 176 (Pa. Super.
     2015) (quoting Com. v. Bennett, 930 A.2d 1264, 1271, 1272
     (Pa. 2007)(“The statute has two components, which must be
     alleged and proved. Petitioner must establish that: 1) the facts
     upon which the claim was predicated were unknown and 2) could
     not have been ascertained by the exercise of due diligence.”).
     “Due diligence requires neither perfect vigilance nor punctilious
     care, but rather it requires reasonable efforts by a petitioner,
     based on the particular circumstances, to uncover facts that may
     support a claim for collateral relief.” Com. v. Burton, 121 A.3d
     1063, 1071 (Pa. Super. 2015).

           Here, Petitioner avers he was not aware that the
     Commonwealth is permitted to use out-of-state convictions as
     enhancements to his prior record score at the sentencing stage.
     However, Petitioner’s own Objection belies the assertion that he
     was unaware of these cases and could not have discovered them
     by the exercise of due diligence.

            First, Petitioner argues that he exercised due diligence in
     discovering the series of cases that have cemented the use of out-
     of-state convictions under the Bolden test.           However, in
     Petitioner’s own words: “both the Superior and Supreme Courts
     have stood firm on the issue of enhancement of sentence[s]
     because of out of state convictions” for, at least, three decades.
     Pet. Br. at 2; See e.g., Com. v. Bolden, 532 A.2d 1172, 1175
     (Pa. Super. 1987)(“[W]hen calculating a prior record score based
     upon a foreign state conviction, a conviction under federal law or
     a conviction for an offense under a former Pennsylvania law, we
     are required to score such a conviction as we would a ‘current
     equivalent Pennsylvania offense.’”). . . . The [PCRA c]ourt finds
     Petitioner’s argument unpersuasive because the exercise of due
     diligence would have uncovered these cases and informed
     Petitioner that out of state convictions would enhance his
     sentence.

          Furthermore, as Petitioner had knowledge about the
     enhancement of his sentence at his disposal in both August of
     2013 and February of 2015, the after-discovered evidence


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      timeliness exception is not applicable. Pet. Br. at 2. Thus, when
      Petitioner may have personally learned about these cases or how
      to properly calculate his sentence is irrelevant.

             In addition, Petitioner’s Objection contains no additional
      information that would constitute an exception to the timeliness
      requirements under § 9545. As none of the other allegations in
      [his] Petition would give rise to any meritorious timeliness
      exceptions, the Petition is patently timely, and divests this Court
      of jurisdiction under § 9545 to consider the merit of his claim(s).
      See Com. v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008) (“If
      the petition is determined to be untimely, and no exception has
      been pled and proven, the petition must be dismissed without a
      hearing because Pennsylvania courts are without jurisdiction to
      consider the merits of the petition.”); see also Com. v. Jones,
      932 A.2d 179, 182 (Pa. Super. 2007) (where petitioner files
      untimely PCRA petition raising legality of sentence claim,
      jurisdictional limits of PCRA render claim incapable of review) . . .
      Petitioner has not meritoriously alleged any new information has
      been discovered since his first, counseled PCRA Petition, nor
      successfully addressed the untimeliness issue. Accordingly, Our
      reasons for denying [his] Petition as stated in our January 3, 2019,
      Notice stand as we are without jurisdiction to grant relief and [this
      court] cannot conclude Petitioner exercised due diligence under
      these facts.

PCRA Court Order, 2/19/19, at 2-4 (some citations to case law omitted).

      For all of the above reasons, we agree that Appellant has failed to plead

and prove an exception to the PCRA’s time-bar. We therefore affirm the order

denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/19

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