J-S61023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THOMAS L. TERRY

                            Appellant                 No. 368 WDA 2014


               Appeal from the PCRA Order of February 11, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0015702-1991


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED DECEMBER 18, 2014

       Thomas L. Terry appeals the PCRA court order dismissing as untimely

his petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-46. Because we agree that the petition was untimely filed and not

subject to any applicable exception, we affirm.

       Given the nature of our ruling, we need only recite essential aspects of

the procedural history in this case. On July 9, 1993, a jury convicted Terry

of burglary, aggravated assault,1 and spousal sexual assault.2            After

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       See 18 Pa.C.S. § 3502 and 2702, respectively.
2
     See 18 Pa.C.S. § 3128, repealed by Act of March 31, 1995, P.L. 985,
No. 10, § 10.
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sentencing and post-sentencing proceedings, Terry appealed and this Court

affirmed his judgment of sentence on January 19, 1995.             Terry filed a

petition for allowance of appeal to our Supreme Court, which was denied on

July 17, 1995.      Terry did not file a petition for a writ of certiorari to the

United States Supreme Court within the ninety days allowed by Supreme

Court Rule 13.1. Consequently, Terry’s judgment of sentence became final

on October 16, 1995,3 and he had until October 16, 1996, to file a timely

PCRA petition. See 42 Pa.C.S. § 9545(b)(b)(1).

       Terry filed the instant PCRA petition, his seventh, on January 2, 2014.4

By order dated January 21, 2014, and docketed on January 23, 2014, the

PCRA court entered a twenty-day notice pursuant to Pa.R.Crim.P. 907

indicating that the court intended to dismiss Terry’s petition without a

hearing because it was untimely and asserted claims that had been litigated

previously.5 On February 5, 2014, Terry filed a “letter brief” in rebuttal to

the PCRA court’s Rule 907 notice, wherein he offered no material argument

that his petition was timely under any exception to the PCRA’s one-year time
____________________________________________


3
     The ninetieth day fell on October 15, 1995, but that date fell on a
Sunday. Consequently, Terry’s last day to file a timely certiorari petition
was Monday October 16, 1995. See Sup. Ct. R. 30.1.
4
      The docket entry reflects a January 2, 2014 filing date. The time
stamp on the petition, however, reflects a filing date of December 33 [sic],
2013.
5
     The docket incorrectly identifies this order as one “Denying Post-
Conviction Relief Act Petition.”



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limit. On February 12, 2014, the PCRA court entered the order dismissing

Terry’s petition, and this timely appeal followed.    On March 14, 2014, the

PCRA court filed an order directing Terry to file a concise statement of the

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Terry timely

complied.6 Thereafter, the PCRA court filed a Rule 1925(a) opinion, wherein

it explained its bases for dismissing Terry’s petition as untimely.

       Like the trial court, we begin by reviewing our jurisdiction to consider

Terry’s petition.      It is well-established that the PCRA time limits are

jurisdictional, and must be strictly construed, regardless of the potential

merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144,

1145 (Pa. Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-

03 (Pa. 2000), abrogated on other grounds, 943 A.2d 264 (Pa. 2008). “[N]o

court may properly disregard or alter [these filing requirements] in order to

reach the merits of the claims raised in a PCRA petition that is filed in an

untimely manner.”        Murray, 753 A.2d at 203; see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the




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6
      Before this Court, Terry asserts five issues, that are lengthier than
would warrant reproduction herein, given the fact that we do not reach the
merits of any of them.



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three     exceptions    to     the   one-year    time    limit   enumerated    in

subsection 9545(b) of the PCRA, which provides:

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:

           (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.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the claim
        could have been presented.

42 Pa.C.S. § 9545(b).        When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

to the PCRA’s one-year jurisdictional time limit, the petition is untimely and

we must deny the appellant relief.         Gamboa-Taylor, 753 A.2d at 783.

Moreover, as reflected in the plain language of subsection 9545(b)(2), even

when one of the exceptions may apply to a given petition, it will excuse the

untimeliness only if the petition was filed within sixty days of the date that

the conditions underlying the exception came to light. Id. at 784.



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      Terry acknowledges that his petition is untimely. However, he asserts

that his untimeliness should be excepted based upon the governmental

interference and newly-discovered fact exceptions set forth at subsection

9545(b)(1)(i). As noted, supra, in order to establish the application of that

exception, Terry must plead and prove that he filed his petition within sixty

days of when the claim could have been presented—in this instance,

whenever he learned of the alleged government interference or the newly-

discovered facts to which he alludes.

      Although Terry makes some effort to argue his governmental-

interference exception, he does not materially develop his newly-discovered

fact exception. More importantly, however, nowhere in his PCRA petition or

his brief does Terry assert that his petition was filed within sixty days of

when he learned of the possible applicability of either exception. His failure

to do so is fatal to his claims that either exception applies to release him

from the requirement that his PCRA petition be filed within one year of when

his judgment of sentence became final.           Accordingly, the PCRA court

correctly determined that it lacked jurisdiction over Terry’s petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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