J-S24024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                    v.

JEREMY WHRITENOUR,

                          Appellant                     No. 2696 EDA 2014


            Appeal from the PCRA Order entered August 28, 2014,
                in the Court of Common Pleas of Lehigh County,
             Criminal Division, at No(s): CP-39-CR-0003949-2003


BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                                 FILED APRIL 13, 2015

      Jeremy Whritenour (“Appellant”) appeals pro se from the order

denying his serial petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The   pertinent    facts   and   partial   procedural   history   have   been

summarized as follows:

            On April 4, 2005, [Appellant] pled guilty to involuntary
         deviate sexual intercourse (“IDSI”), and was sentenced
         [to] 5 to 15 years in prison. On January 4, 2006, this
         Court affirmed the judgment of sentence and [Appellant]
         did not seek further review. See Commonwealth v.
         Whritenour, 895 A.2d 653 (Pa. Super. 2006)
         (unpublished memorandum).

             [Appellant] subsequently filed his first PCRA Petition,
         which was denied on November 9, 2007.           This court
         affirmed the denial on September 30, 2008.             See
         Commonwealth v. Whritenour, 964 A.2d 448 (Pa.
         Super. 2008) (unpublished memorandum), appeal denied,
         970 A.2d 430 (Pa. 2009). Thereafter, [Appellant] filed his
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           second PCRA Petition, which was dismissed as untimely
           filed on July 12, 2010. No appeal from that Order was
           filed.

Commonwealth v. Whritenour, 82 A.3d 1081 (Pa. Super. 2013),

unpublished memorandum at 1-2.

      On    August   14,   2012,   Appellant   filed   his   third   PCRA   petition.

Thereafter, the PCRA court issued Pa.R.Crim.P. 907 notice of its intent to

dismiss the petition as untimely filed.          After considering Appellant’s

response, the PCRA court dismissed Appellant’s third petition on September

14, 2012. On July 29, 2013, this Court affirmed the PCRA court’s denial of

post-conviction relief.    See Whitenour, supra.         In doing so, this Court

noted that Appellant had “not explicitly pled or proven any of the exceptions

to the PCRA’s timeliness requirements.” Id., at 3. Appellant did not file a

petition for allowance of appeal to our Supreme Court.

      Appellant filed the serial PCRA petition at issue, his fourth, on August

6, 2014. Within this petition, Appellant asserts that he was denied parole by

the Pennsylvania Board of Probation and Parole (“Parole Board”) due to

“negative letters of recommendations” made by both the trial court and the

District Attorney’s Office. See PCRA Petition, 8/6/14, at 2-A. Appellant also

alleges that his trial counsel was ineffective for failing to object to the trial

court’s participation in the plea process, given the trial court’s “erroneous

recitation of the Parole Act.” Id., at 3-4.

      On August 12, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of

intent to dismiss Appellant’s latest petition without a hearing.              In his

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response filed on August 21, 2014, Appellant asserted that his fourth PCRA

petition is timely because it was filed within sixty days of the Parole Board’s

action. See Rule 907 Response, 8/21/14, at 6. Appellant also asserts that

he only pled guilty because he believed his eligibility for parole depended “on

him and it was a ‘term’ he considered in exchange for his pleas of guilty.”

Id. By order entered August 28, 2014, the PCRA court denied Appellant’s

fourth PCRA petition because it was untimely filed.             This timely appeal

followed. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported     by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

        Before addressing the substantive claims raised by Appellant in his pro

se brief, we must first determine whether the PCRA court properly

determined that Appellant’s fourth PCRA petition was untimely.

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       The    timeliness   of   a   post-conviction     petition    is    jurisdictional.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;    or    (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not


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raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Appellant’s judgment of sentence became final on February 3, 2006,

after the expiration of time for filing a petition for allowance of appeal with

our Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3). Thus, Appellant had

until February 5, 2007, to file this PCRA petition, but he did not file it until

August 6, 2014. Thus, Appellant’s fourth petition is untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

      Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Within his brief, Appellant asserts that his

recent denial of parole constitutes “newly discovered evidence,” and renders

his latest petition timely under section 9545(b)(1)(ii).        This exception

requires that “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.” 42 Pa.C.S.A. § 9545(b)(1)(ii).

      The PCRA court rejected Appellant’s claim, reasoning:

            [Appellant’s] contention that “negative letters of
         recommendations” were sent to the [Parole] Board are not
         unknown facts. [These allegations were previously raised
         in Appellant’s PCRA filed on August 14, 2012.]
         [Appellant’s] third PCRA made the same allegation based
         on the action of the [Parole] Board on July 9, 2012.
         Therefore, [Appellant,] who realized on July 9, 2012, that
         he would not “automatically” be paroled at the completion

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         of his minimum sentence, cannot now claim this evidence
         to be “newly discovered.”       See Commonwealth v.
         Herrold, 776 A.3d 994 (Pa. Super. 2001); Ortiz v.
         Superintendent, SCI Dallas, 2014 WL 645242, *3
         (E.D.Pa. February 19, 2014) (slip copy) (petitioner was not
         allowed to claim evidence to be “newly discovered” under
         the PCRA, when issue regarding allegedly exculpatory
         evidence    was    previously    raised   and     rejected);
         Commonwealth v. Chester, 895 A.2d 520, 523 (Pa.
         2006) (Trial counsel’s arrest is not unknown to a PCRA
         petitioner when the information was a matter of public
         record). Additionally, the action of the [Parole] Board is
         also a legal determination that [Appellant] should not be
         paroled.

PCRA Court Opinion, 8/28/14, at 5-6 (footnotes omitted).

      Our review of the record supports the PCRA court’s conclusion that

Appellant did not timely raise his claim of newly discovered evidence.   See

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (holding that

to qualify for the newly-discovered exception under the PCRA, the facts must

be unknown to the petitioner, not discoverable through reasonable diligence,

and not part of the public record).

      Within his brief, Appellant also asserts that the PCRA court “erred

when it ignored to consider [sic] whether Appellant’s post-PCRA claims of

ineffective assistance of counsel are ‘distinct’ from previous[ly] litigated

issues and may be brought in a post-conviction proceeding.”        Appellant’s

Brief at 6. The PCRA court correctly dispensed with this claim:

            [Appellant] has also attempted to merge claims of
         ineffective assistance of counsel to avoid the jurisdictional
         hurdles. This attempt is unavailing because a claim of
         ineffective assistance of counsel does not save an
         otherwise untimely petition for review on the merits.


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         Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785
         (Pa. 2000) (“[S]ubsequent counsel’s review of previous
         counsel’s representation and a conclusion that previous
         counsel was ineffective is not a newly discovered ‘fact’
         entitling [the PCRA petitioner] to the benefit of the
         exception for after-discovered evidence.”).       See also
         Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa.
         Super. 2008). In that regard, [Appellant’s] claim that
         counsel was ineffective for failing to object to this Court’s
         participation in the plea process “via his erroneous
         recitation of the Pennsylvania Parole Act” does not provide
         an exception to the time-bar.

PCRA Court Opinion, 8/28/14, at 6 (footnote omitted). See 42 Pa.C.S.A. §

9545(b)(4) (providing that for purposes of the exceptions to the PCRA time

bar, “‘government officials’ shall not include defense counsel, whether

appointed or retained”) .

      In sum, the PCRA court correctly determined that it lacked jurisdiction

to consider Appellant’s latest petition under the PCRA. We therefore affirm

the PCRA court’s order denying Appellant post-conviction relief.

      Order affirmed.

    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2015




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