J-S52028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRIAN SAUERWINE,                         :
                                          :
                    Appellant             :   No. 791 EDA 2019


          Appeal from the PCRA Order Entered February 25, 2019,
              in the Court of Common Pleas of Lehigh County,
           Criminal Division at No(s): CP-39-CR-0003289-2006,
            CP-39-CR-0003290-2006, CP-39-CR-0003292-2006.


BEFORE: OTT, J., KUNSELMAN, J., and MCLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                    FILED NOVEMBER 06, 2019

      Brian Sauerwine appeals pro se from the order denying as untimely his

serial petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

      In a prior appeal denying post-conviction relief, the PCRA court

summarized the pertinent facts underlying Sauerwine’s criminal convictions

as follows:

             On numerous occasions between 2003 and 2006,
         [Sauerwine] sexually assaulted his three [young] nieces. All
         of the girls were five years old or younger at the time of the
         abuse, which occurred when they visited [Sauerwine’s]
         house. [Sauerwine] sexually assaulted each girl in the same
         manner. He would first ask the young girl to sit on his lap.
         He would then proceed to rub and touch the girl’s buttocks
         and genitals. [Sauerwine] also digitally penetrated the
         vagina of one of the girls.
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            The children eventually reported the abuse to the mother
         of one of the girls. On March 27, 2006, the mother relayed
         the reports of abuse to Lehigh County Children and Youth
         Services. The Commonwealth subsequently filed three
         criminal informations against [Sauerwine], one for each
         victim.

            On April 16, 2007, [Sauerwine] entered a guilty plea to
         indecent assault, 18 Pa.C.S. §3126(a)(7) and (b)(ii), in each
         of these three cases. This crime, a felony of the third
         degree, is committed when a perpetrator has indecent
         contact with a child who is younger than 13 years of age.
         Under the plea bargain, all other charges, some of which
         were serious felonies, were withdrawn. The plea bargain
         also required that the court give minimum confinement
         sentences which did not exceed the standard range of the
         sentencing guidelines. There was no plea bargain as to
         whether the sentences would run concurrently or
         consecutively.

Commonwealth v. Sauerwine, 6 A.3d 559 (Pa. Super. 2010), unpublished

memorandum at 1-2 (citing PCRA Court Opinion, 12/16/09, at 2).

      On October 22, 2007, the trial court sentenced Sauerwine, consistent

with the plea bargain, to an aggregate sentence of twenty-seven months to

fifteen years in prison. Although Sauerwine filed a post-sentence motion, he

later withdrew it. Sauerwine did not file a direct appeal.

      Sauerwine filed a pro se PCRA petition on January 14, 2009. The PCRA

court appointed counsel, and PCRA counsel filed an amended petition. The

PCRA court held an evidentiary hearing on April 29, 2009. By order entered

July 20, 2009, the PCRA denied the petition. We affirmed the denial of post-

conviction relief on July 13, 2010. Sauerwine, supra. Our Supreme Court

denied Sauerwine’s petition for allowance of appeal on December 1, 2010.

Commonwealth v. Sauerwine, 13 A.3d 478 (Pa. 2010).

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       Thereafter, Sauerwine again unsuccessfully sought post-conviction relief

by filing PCRA petitions in 2014 and 2017. On October 23, 2018, Sauerwine

filed the PCRA petition at issue, his fourth. On November 19, 2018, the PCRA

court issued Pa.R.Crim.P. 907 notice of its intention to dismiss the petition

because it was untimely, and Sauerwine failed to prove an exception to the

PCRA’s time bar. Sauerwine filed a response. By order entered February 25,

2019, the PCRA court dismissed Sauerwine’s petition. This appeal followed.1

Both Sauerwine and the PCRA Court have complied with Pa.R.A.P. 1925.

       Before addressing the issues Sauerwine raises on appeal, we must first

determine whether the PCRA court correctly determined that his current PCRA

petition was untimely filed. This Court’s standard of review regarding an order

dismissing a petition under the PCRA is to ascertain whether “the

determination of the PCRA court is supported by the evidence of record and is

free of legal error. The PCRA court’s findings will not be disturbed unless there



____________________________________________


1 Sauerwine’s pro se notice of appeal inappropriately lists three docket
numbers. See generally, Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). Our review of the record reveals, however, that in its February 25,
2019 order, the PCRA court informed Sauerwine that he had thirty days in
which to file “a Notice of Appeal. Recently, this Court concluded that to
instruct a pro se litigant in this manner constituted a breakdown in court
operations such that, rather than quash pursuant to Walker, we could
address the merits of the appeal. See Commonwealth v. Stansbury, 2019
WL 4197218, ___ A.3d. ___ (Pa. Super. 2019). Since there may have been
confusion by this instruction, we will do the same.




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is no support for the findings in the certified record.”      Commonwealth v.

Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

        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

is final unless the petition alleges, and the petitioner proves, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims could

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §




____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).




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9545(b)(2).3 Asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

       Here, because Sauerwine did not file a direct appeal to this Court, his

judgment of sentence became final thirty days thereafter, or on November 21,

2007. See 42 Pa.C.S.A. § 9545(b)(3). Thus, for purposes of the PCRA’s time

bar, Sauerwine had to file his first PCRA petition by November 21, 2008.

Sauerwine filed his fourth PCRA petition on October 23, 2018.        Thus, the

petition is patently untimely, unless Sauerwine has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies.        See

Hernandez, supra.

       Sauerwine has failed to plead and prove any exception to the PCRA’s

time bar. In his fourth petition, Sauerwine did not acknowledge the PCRA’s

time restrictions or the exceptions thereto. In his pro se brief, Sauerwine sets

forth several claims of ineffectiveness of counsel.   Such allegations cannot

establish an exception to the PCRA’s time bar. See, e.g., Commonwealth

v. Edmiston, 65 A.3d 339, 349 (Pa. 2013) (explaining that allegations of

ineffectiveness of counsel will not overcome the jurisdictional timeliness

requirements of the PCRA). Therefore, the PCRA court correctly determined


____________________________________________


3Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. The sixty-day time period applies in this appeal.


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that it lacked jurisdiction to consider the merits of the Sauerwine’s fourth PCRA

petition. We therefore affirm its order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/19




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