J-S22021-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN ANDREW SHENK                         :
                                               :
                       Appellant               :   No. 73 MDA 2019

            Appeal from the PCRA Order Entered December 19, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0001621-2012


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.:                               FILED AUGUST 15, 2019

       Appellant, Kevin Andrew Shenk, appeals pro se from the December 19,

2018 Order that dismissed as untimely his first Petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.         Because

Appellant fails to plead and prove an exception to the PCRA time bar, we affirm

the PCRA court’s dismissal.

       On July 12, 2012, Appellant entered a negotiated guilty plea to two

counts of Aggravated Assault and three counts of Recklessly Endangering

Another Person, and the trial court sentenced him to eight years of probation.1
____________________________________________


1 This Judgment of Sentence was entered at Docket Number 1621-2012. On
the same day, Appellant also entered a negotiated guilty plea to Criminal
Solicitation to Commit Statutory Sexual Assault, Unlawful Contact with a
Minor, and Corruption of Minors at Docket Number 5517-2011 and twenty-
four counts of Sexual Abuse of Children (Possession of Child Pornography) at
Docket Number 5519-2011. The trial court proceeded to sentence Appellant


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Appellant did not file a direct appeal.        Thus, his sentence became final on

August 13, 2012.2        See 42 Pa.C.S. § 9545(b)(3) (providing “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”); Pa.R.A.P.

902 (providing that a notice of appeal “shall be filed within 30 days after the

entry of the order from which the appeal is taken.”).

        On May 18, 2018, Appellant filed his first pro se PCRA Petition.3 In his

pro se Petition, Appellant claimed that his sentence was illegal pursuant to a

newly recognized constitutional right. PCRA Petition, 5/18/18, at 3-4. The
____________________________________________


to an aggregate term of twenty-five to fifty years of incarceration. On January
3, 2013, Appellant filed a Motion to Withdraw his guilty plea, which the trial
court denied on January 24, 2013. On April 23, 2013, following a hearing, the
trial court classified Appellant as a sexually violent predator.

2   August 11, 2012 was a Saturday. See 1 Pa.C.S. § 1908.

3 On July 1, 2013, Appellant filed a timely pro se PCRA Petition at Docket
Numbers 5517-2011 and 5519-2011. After appointing counsel, who filed an
Amended PCRA Petition, the PCRA court denied the Petition on April 1, 2014.
This Court affirmed the PCRA court’s denial on December 4, 2014.
Commonwealth v. Shenk, 116 A.3d 679 (Pa. Super. 2014) (unpublished
memorandum). On March 16, 2015, Appellant filed a second untimely pro se
PCRA petition at Docket Numbers 5517-2011 and 5519-2011. On July 13,
2015, the PCRA court dismissed Appellant’s Petition. Appellant did not appeal.
On May 18, 2018, Appellant filed his third pro se PCRA Petition Docket
Numbers 5517-2011 and 5519-2011 and his first pro se PCRA Petition at the
above captioned Docket Number. On July 19, 2018, the PCRA court dismissed
Appellant’s PCRA Petition at Docket Numbers 5517-2011 and 5519-2011. This
Court affirmed the PCRA court’s dismissal on April 24, 2019. Commonwealth
v. Shenk, Nos. 1321 MDA 2018; 1322 MDA 2018 (Pa. Super. filed April 24,
2019).



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PCRA court appointed Dennis C. Dougherty, Esq., to represent Appellant.

Attorney Dougherty subsequently filed a Petition to Withdraw as Counsel and

a Turner/Finley4 “no merit” letter.            In response, Appellant filed a pro se

Amended PCRA Petition alleging that his plea counsel was ineffective and

caused him to enter an unknowing and unintelligent plea to charges barred by

the statute of limitations. Amended PCRA, 11/26/18, at 2-3.

       On November 27, 2018, the PCRA court granted counsel’s Petition to

Withdraw and notified Appellant of its intent to dismiss his Petition without a

hearing pursuant to Pa.R.Crim.P. 907.             Appellant filed a pro se Rule 907

Response (“Response”) where he reiterated the claim his plea counsel was

ineffective, re-characterizing this as a previously unknown fact. Appellant also

advanced a new claim that his PCRA petition was untimely filed due to

government      interference,     alleging     that   despite   multiple   requests   for

information, he did not receive a complete copy of his court records until

November 2018, when he discovered the “previously unknown fact” that his

charges were barred by the statute of limitations. Response, 12/19/18, at 1.

       On December 19, 2018, the PCRA court dismissed Appellant’s Petition

as untimely. This timely pro se appeal followed. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:



____________________________________________


4Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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      I.     Did the Commonwealth error [sic] in filing charges against
             [] Appellant that were barred by the statute of limitations
             and in turn saw the charges through the guilty plea hearing
             and sentencing on July 12, 2012? In the alternative does
             the Commonwealth[’]s error constitute prosecutorial
             misconduct?

      II.    Was Appellant[’]s counsel from arraignment to sentencing,
             Attorney Jeffrey A. Conrad, ineffective in failing to raise the
             issue with the time barred charges in any hearings from
             arraignment up to and including the guilty plea hearing and
             sentencing on July 12, 2012?

      III.   Was Appellant[’]s assigned Appellate counsel, Attorney
             Dennis Dougherty, ineffective in failing to raise the issue
             with the time barred charges at any part of the appellate
             process in which he was appointed to represent [] Appellant.

      IV.    Did the error by the Commonwealth of filing time barred
             charges cause the guilty plea entered into on July 12,
             2012[,] to be unknowingly and unintelligently entered into
             by Appellant? In the alternative was the sentence that
             resulted from the guilty plea legal and valid?

      V.     Did the Commonwealth error [sic] in not holding an
             evidentiary hearing on the issues of ineffectiveness of
             counsel and legality of the guilty plea due to the
             ineffectiveness of counsel, recognized by the Honorable
             Howard F. Knisely [] in his 907 Notice?

Appellant’s Brief at 6 (some capitalization omitted).

      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).     We give no such deference, however, to the court’s legal




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conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1). Appellant’s Petition, filed more than five years after his Judgment

of Sentence became final, is facially untimely.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within one year of the date the claim could have been presented. 42 Pa.C.S

§ 9545(b)(2).

      We note that even though a defendant cannot waive a legality of

sentence issue, we do not have jurisdiction to review the legality of a sentence

in a PCRA petition unless the petitioner can establish that the PCRA grants the

court the authority to exercise jurisdiction over the legality of sentence issue.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007); see 42

Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“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.” (citation omitted)).




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      In his PCRA Petition, Appellant attempts to invoke the timeliness

exception set forth in Section 9545(b)(1)(iii), alleging that his illegal sentence

claims are based on a newly recognized constitutional right. PCRA Petition,

5/18/18,   at   3-4.     Specifically,   Appellant   claims   that   pursuant   to

Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017), he was illegally

sentenced to Pennsylvania’s Sex Offender Registration and Notification Act

(“SORNA”) in violation of the ex post facto clauses of the federal and state

constitutions. Id. Appellant also claims that pursuant to Commonwealth v.

Butler, 173 A.3d 1212, 1213 (Pa. Super. 2017), he was illegally determined

to be a sexually violent predator (“SVP”). Id. However, the trial court did not

find Appellant to be a SVP or sentence Appellant under SORNA at this criminal

docket number. Instead, he pleaded guilty to Aggravated Assault and REAP,

and the trial court sentenced him to eight years of probation. Accordingly,

the holdings in both Muniz and Butler do not apply to the instant case and,

thus, Appellant failed to invoke this exception to the PCRA time-bar.

      In his Amended PCRA Petition and Response, Appellant attempts to

invoke Section 9545(b)(1)(ii) to overcome the PCRA’s time bar by alleging the

“previously unknown fact” his plea counsel was ineffective and caused him to

enter an unknowing and unintelligent plea to charges barred by the statute of

limitations. Amended PCRA, 11/26/18, at 2-3; Response, 12/19/18, at 1. To

invoke this exception, Appellant “must explain why he could not have learned

the new fact(s) earlier with the exercise of due diligence.” Commonwealth

v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015); 42 Pa.C.S. § 9545(b)(1)(ii).

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       Appellant also attempts to invoke Section 9545(b)(1)(ii) by advancing

the argument that “government interference” prevented him from learning

that his charges were barred by the statute of limitations because he

requested his court records multiple times and just recently received them.

Response, 12/19/18, at 1. To invoke this exception, Appellant must prove

that, “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 of laws of this Commonwealth or the Constitution of laws of the

United States.” 42 Pa.C.S. 9545(b)(1)(i).

      Appellant fails to prove either exception. Appellant fails to explain why

he could not have learned about the statute of limitations earlier with the

exercise of due diligence. Appellant likewise fails to explain how government

officials prevented him from obtaining his court records in violation of state or

federal constitutional laws. Appellant fails to satisfy any of the exceptions to

the PCRA’s time-bar and, thus, the PCRA court lacked jurisdiction to address

the merits of Appellant’s ineffectiveness claim.      See Commonwealth v.

Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (reiterating that, because “the

PCRA’s timeliness requirements are jurisdictional in nature . . . courts may not

address the merits of the issues raised in a petition if it is not timely filed”).

We are, likewise, without jurisdiction to address the merits of the issues raised

in Appellant’s Petition.

      Finally, in his 1925(b) Statement and Brief to this court, Appellant

asserts, for the first time, that his PCRA counsel was ineffective. Rule 1925(b)

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Statement, 1/8/19, at ¶ 9; Appellant’s Br. at 5. This Court has explained that

in order to preserve the issue that PCRA counsel was ineffective, a petitioner

must include the claim in his Rule 907 response or raise the issue prior to

filing a notice of appeal while the PCRA court retains jurisdiction.

Commonwealth v. Rigg, 84 A.3d 1080, 1085 (Pa. Super. 2014). Because

Appellant failed to raise this issue before the PCRA court while the PCRA court

retained   jurisdiction,   Appellant   failed   to   preserve   his   PCRA   counsel

ineffectiveness claim. Thus, we find this issue to be waived.

      In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. Further, we find Appellant’s

claim that his PCRA counsel was ineffective to be waived. The PCRA court

properly dismissed Appellant’s Petition as untimely. The record supports the

PCRA court’s findings and its Order is free of legal error. We, thus, affirm the

denial of PCRA relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/15/2019

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