J-S61014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEREMY MICHAEL BANEY

                            Appellant                 No. 744 MDA 2015


                  Appeal from the PCRA Order March 27, 2015
                In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-CR-0000109-2002


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY PANELLA, J.                    FILED DECEMBER 15, 2015

        Appellant, Jeremy Michael Baney, appeals from the order dismissing

his fourth petition pursuant to the Post Conviction Relief Act (“PCRA”) as

untimely. Baney argues that the PCRA court erred in concluding that he had

not established that his claims qualified for the previously unknown fact

exception to the PCRA’s time bar. We conclude that the PCRA court did not

err, and therefore affirm.

        Given our resolution of this appeal, we need not set forth a detailed

factual and procedural history of this case. We direct the interested reader

to the history set forth in this Court’s memorandum decision resolving

Baney’s appeal from the partial denial of his third PCRA petition.       See

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S61014-15


Commonwealth v. Baney, No. 581 MDA 2013 (Pa. Super. filed October 30,

2013) (unpublished memorandum).         In that memorandum, we concluded

that Baney’s third PCRA petition was facially untimely, and therefore could

not provide Baney relief in the absence of an established exception to the

PCRA’s time bar provisions. See id., at 8.

      Baney’s subsequent PCRA petition, his fourth, is the basis of the

present appeal.     It is therefore also facially untimely.   “PCRA timeliness

requirements are jurisdictional in nature and, accordingly, a court cannot

hear untimely PCRA petitions.”      Commonwealth v. Flanagan, 854 A.2d

489, 509 (Pa. 2004) (citations omitted). Thus, Baney was required to plead

and prove that an exception to the PCRA time-bar applied.                 See

Commonwealth v. Pursell, 749 A.2d 911, 914-915 (Pa. 2000).

      Acknowledging this legal reality, Baney argues that the PCRA court

erred in concluding that he had failed to establish the “previously unknown

fact” exception to the time bar.    Baney’s argument is premised upon two

separate alleged facts that he claims were unknown to him until just before

he filed the instant petition.

      First, Baney argues that research performed by National Legal

Professional Associates (“NLPA”), at the request of trial counsel but never

used by counsel, qualifies as a previously unknown fact.      However, at the

PCRA hearing, Baney described this research as “legal research” about

possible issues on direct appeal.     N.T., PCRA Hearing, 1/7/15, at 12-15.

Trial counsel also testified that NLPA conducts legal research.    See id., at
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J-S61014-15


54.    Thus, Baney’s claim is not one based upon new facts that could have

been presented at trial, but rather about legal issues to be raised on appeal.

This claim is a claim of ineffective assistance of counsel, not “previously

unknown facts.”    “[A]   claim for ineffective assistance of counsel does not

save    an   otherwise    untimely   petition   for   review   on   the   merits.”

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

(citations omitted).

       The other fact identified by Baney is the re-sentencing of a co-

defendant in 2008. However, Baney was unable to identify what relevance

this re-sentencing had to his case. See N.T., PCRA Hearing, 1/7/15, at 109.

Therefore, we cannot conclude that the PCRA court erred in concluding that

Baney had not established the applicability of the “previously unknown fact”

exception to the PCRA’s time bar.

       Since Baney failed to establish that the PCRA court had jurisdiction to

entertain his petition, we affirm the PCRA court’s order dismissing the

petition.

       Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015

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