J-S53003-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
LYNN ALAN PADGETT,                        :
                                          :
                    Appellant             :   No. 516 MDA 2014

                 Appeal from the PCRA Order February 18, 2014,
                     Court of Common Pleas, Bradford County,
                 Criminal Division at No. CP-08-CR-0000888-1997

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 17, 2015

      Lynn A. Padgett (“Padgett”) appeals from the February 18, 2014 order

of the Bradford County Court of Common Pleas dismissing his sixth petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”), as untimely. We affirm.1




1
   On May 12, 2015, Padgett filed a motion in this Court entitled, “Objections
to Defects in the Record,” seeking for this Court to make certain corrections
to the “List of Items Sent to the Superior Court” that he received from the
lower court’s prothonotary, as Padgett believes the list “to be defective in
some areas and lacking information in others.” Pro Se Motion, 5/12/15. We
consider this to be a motion filed pursuant to Pa.R.A.P. 1926, which states,
in relevant part:

            (b) If anything material to a party is omitted from
            the record by error, breakdown in processes of the
            court, or accident or is misstated therein, the
            omission or misstatement may be corrected by the
            following means:
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      We previously summarized the factual and procedural histories of the

case when deciding a prior appeal as follows:

               On January 8, 1998, [Padgett] entered guilty
            pleas in two cases to two counts of involuntary
            deviate intercourse and one count of rape. The
            offenses took place in Lycoming and Bradford
            Counties, and were prosecuted together in Bradford
            County. [Padgett]’s initial sentence entered on March
            5, 1998 was vacated, and he was resentenced on
            October 7, 1999, to an aggregate term of fifteen to
            thirty years’ imprisonment. [Padgett] then filed a
            direct appeal which raised challenges to jurisdiction.
            This Court affirmed [Padgett]’s judgment of sentence
            on October 10, 2001. [Padgett] did not file a timely
            petition for allowance of appeal.

               On February 12, 2003, [Padgett] filed his first
            PCRA petition, which was dismissed as untimely on
            June 10, 2003. We affirmed on June 10, 2004.
            [Padgett] filed a second PCRA petition on October
            22, 2007, which the PCRA court dismissed as
            untimely on October 2, 2008. [Padgett] filed a pro se
            appeal to this Court, and subsequently also filed with
            this Court a motion for remand and stay of
            proceedings, seeking a remand so that the PCRA
            court   could    consider   an   amended       petition
            ([Padgett]’s third PCRA petition) that was filed on
            November 17, 2009. On September 8, 2010, this
            Court affirmed the dismissal of [Padgett]’s second


            (1) by the trial court or the appellate court upon
            application or on its own initiative at any time; in the
            event of correction or modification by the trial court,
            that court shall direct that a supplemental record be
            certified and transmitted if necessary[.]

Pa.R.A.P. 1926(b)(1). Although Padgett avers that the items missing from
“the list” “are essential” to the claims raised, he does not aver that the items
were excluded “by error, breakdown in processes of the court, or by
accident.” See Pro Se Motion, 5/12/15. As such, we cannot grant him the
relief requested.


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           PCRA petition and denied the motion for remand.
           Our Supreme Court denied [Padgett]’s petition for
           allowance of appeal on April 20, 2011.

               [Padgett] filed his fourth PCRA petition on April
           12, 2010. The PCRA court issued an order on April
           21, 2010, directing [Padgett] to file an amended
           petition within 30 days. On June 21, 2010, the PCRA
           court issued a notice of its intent to dismiss pursuant
           to Pa.R.Crim.P. 907, which specified five reasons
           why [Padgett] is not entitled to PCRA relief. The
           PCRA court then entered an order on June 24, 2010,
           granting [Padgett] “leave to re-submit his claim for
           relief as a petition for relief under the Post Conviction
           Relief Act” within 30 days. On July 8, 2010,
           [Padgett] filed a pro se notice of appeal of the June
           21, 2010, [Rule] 907 order to this Court.

               Because [Padgett] filed his 2010 appeal during
           the pendency of his prior appeal from the denial of
           his second PCRA petition, and his motion for remand
           for consideration of his third PCRA petition, this
           Court quashed his appeal. Undaunted, on September
           29, 2011, [Padgett] filed a “Petition for a hearing to
           strike the court’s judgment of conviction in the
           above-captioned matter as being void ‘ab initio.’” On
           October 11, 2011, [Padgett] filed a motion for the
           appointment of counsel and leave to supplement his
           petition. By order dated October 12, 2011, the PCRA
           court stated that it would treat [Padgett]’s latest
           petition as a PCRA petition and afforded [Padgett]
           thirty days in which to file an amended petition. On
           November 14, 2011, [Padgett] filed an amended
           PCRA petition, his fifth. By order entered December
           2, 2011, the PCRA court issued notice pursuant to
           Pa.R.Crim.P. 907, of its intent to dismiss [Padgett]’s
           petition as untimely. [Padgett] did not file a
           response. By order dated January 11, 2012, the
           PCRA court dismissed [Padgett]’s fifth PCRA petition.

Commonwealth v. Padgett, 1003 MDA 2012, at 1-3 (Pa. Super. Jan. 7,

2013) (unpublished memorandum) (internal citations omitted).



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      On August 30, 2013, Padgett filed the instant PCRA petition.        On

October 7, 2013, the PCRA court appointed counsel to represent Padgett.

On December 23, 2013, appointed counsel filed a Turner/Finley2 “no-

merit” letter and petition to withdraw as counsel. On December 30, 2013,

the PCRA court issued notice of its intent to dismiss Padgett’s sixth PCRA

petition pursuant to Pa.R.Crim.P. 907.      Padgett filed a objections to the

PCRA court’s 907 on January 24, 2014.        On January 31, 2014, the PCRA

court dismissed Padgett’s petition and granted appointed counsel’s petition

to withdraw.    Nonetheless, Padgett filed objections to counsel’s no-merit

letter on February 3, 2014.

      On February 21, 2014, Padgett filed a timely pro se notice of appeal.

He raises the following questions for our review:

      I.     Was the [PCRA] court’s denial of relief based on the
             misapplication of the clearly established standard for
             a timely filed PCRA petition under 42[] Pa.C.S. §
             9545(b)(1)(i)-(iii); (2), an abuse of discretion?

      II.    [crossed out]

      III.   Did the PCRA court abuse its discretion[] and err by
             allowing [Padgett] to be prosecuted[] and convicted
             of an offense that was not included in the criminal
             information?

      IV.    Given that [Padgett] was convicted of a Bradford
             County offense that did not occur, and he did not
             commit, is [Padgett]’s judgment of conviction a void
             judgment?


2
   Commonwealth v. Turner, 544 A.2d 927, 928 (Pa.                     1988);
Commonwealth v. Finley, 550 A.2d 213, 215 (Pa. Super. 1988).


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     V.     [crossed out]

     VI.    Was the District Attorney’s neglect to provide
            [Padgett]’s defense counsel with exculpatory
            evidence that was under the exclusive control of the
            Pennsylvania State Police a violation of [Padgett]’s
            right to due process of the law and contrary to
            clearly established law?

     VII.   Did a manifest injustice occur when the court below
            abused its discretion by neglecting to provide
            [Padgett] an opportunity to address the court before
            he was sentenced?

     VIII. Did the court below abuse its discretion by
           appointing counsel to represent [Padgett] that could
           not raise [Padgett]’s claims of counsel’s prior
           ineffectiveness?

     IX.    Did the court below abuse its discretion by issuing
            orders and opinions that are not supported by the
            record?

     X.     Did defense counsel’s representation fall below a
            reasonable standard of objectiveness where counsel
            neglected to: (1) pursue discovery before advising
            [Padgett] to enter a guilty plea to an offense that did
            not occur, and [Padgett] did not commit; (2) raise a
            viable alibi defense[;] (3) [] interview [Padgett]’s
            alibi/character witness; (4) [] interview the state[’]s
            witnesses; and (5) generally neglect to put the
            prosecution[’]s case to a proper adversarial testing?

     XI.    Was [Padgett] abandon[ed] by appellate counsel
            that filled [sic] a “no[-]merit” letter in which counsel
            acknowledged several of [Padgett]’s claims to be
            valid claims?

     XII.   Was [Padgett] abandon[ed] by appellate counsel
            that failed to file a timely petition for allowance of
            appeal to the state Supreme Court as instructed by
            [Padgett]?



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      XIII. Did the PCRA court abuse its discretion[] and violate
            [Padgett]’s right to due process of the law by holding
            that [Padgett] entered a voluntary, knowing, and
            intelligent plea of guilty to an offense that did not
            occur?

      XIV. Did the Commonwealth violate [Padgett]’s due
           process of the law right by executing a warrantless
           search and seizure on [Padgett]’s property without
           probable cause?

      XV.   Has [Padgett] presented sufficient facts[] and
            evidence to demonstrate that a miscarriage of justice
            occurred in this case?

Padgett’s Brief at 3-4.

      We review the denial of a PCRA petition on timeliness grounds

according to the following standard:

                In reviewing the denial of PCRA relief, we
            examine whether the PCRA court’s determination is
            supported by the record and free of legal error. The
            PCRA timeliness requirement, however, is mandatory
            and jurisdictional in nature. The court cannot ignore
            a petition’s untimeliness and reach the merits of the
            petition. Section 9545(b)(1) requires a petitioner to
            file a PCRA petition within one year of the date the
            judgment [became] final.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (internal

citations and quotations omitted). “[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 time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).




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      The record reflects that Padgett filed a direct appeal from his

resentencing   hearing    and   this   Court   affirmed     in   an   unpublished

memorandum dated October 10, 2001. See Commonwealth v. Padgett,

1941 MDA 2000 (Pa. Super. Oct. 10, 2001) (unpublished memorandum).

Padgett did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court, and thus, his judgment of sentence became final on

November 9, 2001. See Pa.R.A.P. 1113(a). He therefore had one year to

timely file a PCRA petition – here, until November 12, 2002.3 The instant

petition, filed on August 30, 2013, was patently untimely.4

      Section 9545(b)(1) of the PCRA provides three statutory exceptions to

the timeliness provisions that allow for very limited circumstances under

which the late filing of a PCRA petition will be excused:




3
   Although Padgett would typically have had to have filed his PCRA petition
on or before November 9, 2002, that day fell on a Saturday, and the
following Monday, November 11, 2002, was a holiday. He therefore had
until Tuesday November 12, 2002 for his PCRA petition to be considered
timely. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such period
shall fall on Saturday or Sunday, or on any day made a legal holiday by the
laws of this Commonwealth or of the United States, such day shall be
omitted from the computation.”).
4
   In his PCRA petition, Padgett avers that his petition was timely because he
filed it within a year of the decision on his fifth PCRA petition. See PCRA
Petition, 8/30/13, ¶ 32. As the law cited above makes clear, this is not the
starting point for the one-year timeframe. Furthermore, our Supreme Court
has held that apart from the specifically enumerated exceptions contained in
section 9545(b), “the period for filing a PCRA petition is not subject to the
doctrine of equitable tolling[.]” Commonwealth v. Fahy, 737 A.2d 214,
222 (Pa. 1999); Commonwealth v. Rienzi, 827 A.2d 369, 371 (Pa. 2003).


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              (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.A. § 9545(b)(1). “Any petition invoking an exception provided in

paragraph (1) shall be filed within [sixty] days of the date the claim could

have been presented.”        42 Pa.C.S.A. § 9545(b)(2).           It is the petitioner’s

burden to plead and prove, by a preponderance of the evidence, that his

facially untimely petition falls under one of the three timeliness exceptions;

that he filed it within sixty days of the date it could have been presented;

and   that    the     information     could   not    have   been     obtained    earlier.

Commonwealth           v.   Williams,     105      A.3d   1234,    1239   (Pa.   2014);

Commonwealth v. Ali, 86 A.3d 173, 178 (Pa. 2014), cert. denied sub

nom., Ali v. Pennsylvania, 135 S. Ct. 707 (U.S. 2014).

      In his PCRA petition and his brief on appeal, Padgett raised numerous

arguments, including claims that the plea court lacked jurisdiction over the

matter; the absence of charges arising out of Lycoming County in the

Bradford     County    criminal     information;    the   Commonwealth      improperly



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withheld Brady information; ineffective assistance of counsel based upon

the insufficiency of the evidence to support his convictions and counsel’s

failure to prepare a defense and preserve issues below; denial of his right to

allocution prior to sentencing; violation of his Sixth Amendment right to

counsel based on the trial court’s appointment of plea counsel to represent

him on direct appeal (thus precluding him from raising plea counsel’s

ineffectiveness on direct appeal); inaccuracies in the lower court’s orders as

reflected in the certified record; ineffectiveness of PCRA counsel appointed to

represent Padgett on his sixth PCRA petition; ineffectiveness of direct appeal

counsel based upon his failure to file a petition for allowance of appeal to the

Pennsylvania Supreme Court; that his guilty plea to the Bradford County

rape was not knowing, voluntary and intelligent; and the 1997 search and

seizure effectuated of Padgett’s home was done without probable cause or a

lawful warrant.   See Padgett’s Brief at 12-43; PCRA Petition, 8/30/13, ¶¶

24-110. He includes a claim at the beginning of his brief that he satisfied

the exception to the PCRA’s timeliness requirement, as the above arguments

constitute government interference and newly discovered facts that could

not have been discovered with the exercise of due diligence. Padgett’s Brief

at 6; PCRA Petition, 8/30/13, ¶ 18.

      We   have   carefully   reviewed   Padgett’s   appellate   brief   and   the

underlying PCRA petition. Nowhere in either filing does he indicate when he

became aware of the information that provides the basis for his arguments.



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Thus, assuming solely for the sake of this argument that any of the above

information satisfies the time bar exceptions in subsections (b)(1)(i) and/or

(ii), his failure to plead that he discovered the information within sixty days

of the date he filed his latest PCRA petition leaves both the PCRA court and

this Court without jurisdiction to address the substantive arguments raised.

See Williams, 105 A.3d at 1239; Ali, 86 A.3d at 178; Taylor, 67 A.3d at

1248; 42 Pa.C.S.A. § 9545(b)(2).

      Order affirmed. Motion denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015




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