J-S16007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                              :                  PENNSYLVANIA
                              :
          v.                  :
                              :
                              :
 CHARLES MATTHEW SHAFFER      :
                              :
               Appellant      :             No. 1511 MDA 2017
                              :

              Appeal from the PCRA Order September 6, 2017
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001686-2012


BEFORE:    BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY BOWES, J.:                               FILED MAY 14, 2018

      Charles Matthew Shaffer appeals from the denial of his second pro se

PCRA petition as untimely. We affirm.

      On a prior appeal, we summarized the facts and procedural history as

follows:
            A jury convicted Shaffer of attempted rape, attempted
      involuntary deviate sexual intercourse, and indecent assault,
      based upon allegations that he had attempted to forcibly rape an
      ex-girlfriend in his home. On November 14, 2013, the trial court
      sentenced Shaffer to an aggregate term of imprisonment of 10 to
      20 years. Shaffer did not file post-sentence motions or a direct
      appeal.

             On November 6, 2014, Shaffer filed a pro se PCRA petition.
      Counsel was appointed to represent him, and counsel filed an
      amended petition. The PCRA court subsequently entered a notice
      of its intent to dismiss the amended petition without a hearing.
      Shaffer filed a counseled response, however the PCRA court
      entered an order dismissing his petition without a hearing on June
      5, 2015. [On March 21, 2016, we affirmed the PCRA court order


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      denying relief, and Appellant did not file a petition with our
      Supreme Court seeking allowance of appeal.]

Commonwealth v. Shaffer, 144 A.3d 205 (Pa.Super. 2016) (unpublished

memorandum at 1-2) (footnote omitted).

      On March 21, 2017, Appellant filed a second PCRA petition. He asserted

that his prior PCRA counsel provided ineffective assistance in failing to develop

the record while litigating the first petition.     After proper notice under

Pa.R.A.P. 907, the PCRA court dismissed the petition as untimely. This appeal

followed.

      Initially, we note, “[a]n appellate court reviews the PCRA court’s findings

of fact to determine whether they are supported by the record, and reviews

its conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).               “The scope of

review is limited to the findings of the PCRA court and the evidence of record,

viewed in the light most favorable to the prevailing party at the trial level.”

Id.

      The time limitations imposed by the PCRA implicate our jurisdiction and

they may not be altered or disregarded in order to address the merits of a

petition. See Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.

2010) (“Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.”). Appellant’s judgment of sentence became final on

December 14, 2013, thirty days after the entry of the judgment of sentence

and upon the expiration of the period to file a direct appeal with this Court.

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Accordingly, in order to comply with the time requirements, Appellant’s

petition had to be filed by December 14, 2014. Appellant filed the instant

petition on March 21, 2017; thus, unless one of the exceptions set forth in 42

Pa.C.S. § 9545 applies, the petition is barred as untimely.

       Section 9545 provides the following three exceptions that allow for

review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts that could not have been ascertained by the exercise of due

diligence; and (3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545

(b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and satisfy

the burden of proof. Commonwealth v. Beasley, 741 A.2d 1258, 1261-62

(Pa. 1999). In addition, any exception must be raised within sixty days of the

date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2).

       Appellant neglects to assert an exception to the PCRA time bar. Indeed,

his central argument appears to be that PCRA counsel provided ineffective

assistance in failing to submit exhibits and documentary evidence in order to

bolster the assertions leveled in his counseled PCRA petition. That argument

is fruitless.

       It is a well-ensconced principle of law that claims of counsel’s

ineffectiveness cannot be used to salvage an otherwise untimely PCRA. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).                Moreover, as

explained supra, since Appellant does not couch his ineffective-assistance-of-


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counsel claim in terms of a newly discovered fact or abandonment, our

Supreme Court’s holding in Commonwealth v. Bennett, 930 A.2d 1264 (Pa.

2007), is inapplicable.1

       In Bennett, the High Court addressed whether a PCRA petitioner’s

allegation that he recently discovered that PCRA counsel had abandoned him

during his appeal from the order denying his timely first PCRA petition

permitted him to circumvent the PCRA time bar under § 9545(b)(1)(ii). The

Supreme Court first explained that § 9545(b)(1)(ii) is triggered “when 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.”        Id. at

1270 (quoting 42 Pa.C.S. § 9545(b)(1)(ii)). It then concluded that, where a

petitioner pleads and proves both components of this exception, the PCRA

court has jurisdiction over the claim.

       In reaching its determination that the petitioner was entitled to assert

an exception to the PCRA time limitation under § 9545(b)(1)(ii), the High


____________________________________________


1 Likewise, Appellant’s unadorned citation to Commonwealth v. Rosado,
150 A.3d 425 (Pa. 2016) is unavailing. In Rosado, our Supreme Court
addressed an ineffective assistance claim that was raised in a timely filed PCRA
petition and held that counsel’s “filing of an appellate brief which abandons all
preserved issues in favor of unpreserved ones constitutes ineffective
assistance of counsel per se.” Id. at 440. Significantly, since the defendant
in Rosado leveled his claim in a timely PCRA petition, the Court clearly had
jurisdiction to address the merits of the assertion without having to circumvent
the PCRA time bar. Instantly, however, Appellant raised his assertion in a
patently untimely PCRA petition and neglected to invoke any of the statutory
exceptions to the PCRA time requirements. Hence, the PCRA court lacked
jurisdiction to review it. See Monaco, supra.

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Court stressed the significance of the difference between a specific allegation

that PCRA counsel abandoned a petitioner and a general allegation that PCRA

counsel provided ineffective assistance.    See Bennett, supra at 1272-74.

The Court then reiterated that the alleged discovery of the latter form of

ineffectiveness was not grounds for circumventing the § 9545 time

restrictions.   Id. at 1272; Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 785 (Pa. 2000) (“In sum, a conclusion that previous counsel was

ineffective is not the type of [newly]-discovered-[fact] encompassed by the

exception”). However, analogizing a PCRA petitioner’s rule-based right to a

counseled first petition to a criminal defendant’s Sixth Amendment right to

counsel during criminal proceedings, the Supreme Court reasoned that § 9545

could not be applied to preclude review of a previously unknown claim alleging

the complete denial of the assistance of counsel during the appeal from the

order denying the first PCRA petition. Accordingly, the Bennett Court held

that the petitioner’s allegations fell within the newly-discovered-fact exception

to the time bar, and it remanded the matter for this Court to determine

whether counsel’s abandonment was unknown to the petitioner and could not

have been ascertained through due diligence.

      Unlike the defendant in Bennett, however, Appellant did not invoke the

newly-discovered-fact exception to the PCRA’s time requirements pursuant to

§ 9545(b)(1)(ii) or even attempt to assert that he was abandoned by prior

PCRA counsel.     Instead of framing an exception under § 9545(b)(1)(ii),


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Appellant’s claim challenges PCRA counsel’s stewardship in litigating the

merits of his first petition. Thus, the “abandonment” concerns underlying our

Supreme Court’s rationale in Bennett are absent herein.

      Having found that Appellant’s second PCRA petition was untimely filed

and that no exceptions to the statutory time bar apply, we affirm the order

dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




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