J-S38045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
KENNETH LEE RHINE,                         :
                                           :
                  Appellant                :           No. 2199 MDA 2014

            Appeal from the Order entered on December 1, 2014
             in the Court of Common Pleas of Schuylkill County,
            Criminal Division, No(s): CP-54-CR-0000109-2000;
            CP-54-CR-0000173-2001; CP-54-CR-0000679-2000;
            CP-54-CR-0000682-2000; CP-54-CR-0000704-2000;
            CP-54-CR-0000717-2000; CP-54-CR-0000793-2000;
            CP-54-CR-0000850-2000; CP-54-CR-0000902-2000

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED JUNE 30, 2015

      Kenneth Lee Rhine (“Rhine”), pro se, appeals from the Order denying

his Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On October 24, 2000, Rhine entered into a negotiated guilty plea to

theft, reckless endangerment, aggravated assault, and receiving stolen

property, and was sentenced to an aggregate term of two to four years in

prison. On February 27, 2001, Rhine entered into another negotiated guilty

plea to terroristic threats, burglary, theft, and receiving stolen property. The

trial court imposed an aggregate term prison sentence of four to fifteen
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years, consecutive to the sentence he was then serving. Rhine filed a direct

appeal, which was dismissed by per curiam Order on April 20, 2004.

        Rhine filed his first PCRA Petition arguing ineffective assistance of

counsel, which was denied on July 14, 2005. Rhine did not appeal the denial

of his Petition.   Rhine filed a second PCRA Petition in October 2011.          The

PCRA court denied the Petition.         This Court affirmed the denial.         See

Commonwealth v. Rhine, 82 A.3d 1051 (Pa. Super. 2013) (unpublished

memorandum).

        On October 22, 2014, Rhine filed the instant pro se petition.          After

providing Pa.R.Crim.P 907 Notice, PCRA the court denied the Petition on

December 1, 2014. Rhine filed a timely Notice of appeal.

        We review an order denying a petition under a PCRA viewed in the

light   most   favorable   to   the    prevailing   party   at   the   PCRA    level.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                    The review is

limited to the findings of the PCRA court and the evidence of record.            Id.

The PCRA court’s decision will be upheld if it is supported by the record and

free of legal error.    Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).

        Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date the judgment become

final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final

“at the conclusion of direct review, including discretionary review in the



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Supreme Court of Pennsylvania, or at the expiration time for seeking the

review.” Id. § 9545(b)(3).

      Rhine’s judgment of sentence became final on May 20, 2004, when the

time to Petition for allowance of appeal to the Pennsylvania Supreme Court

expired. See Pa.R.A.P. 1113(a). Thus, Rhine had until May 20, 2005, to file

a timely PCRA Petition. The current Petition, which was filed in October of

2014, is facially untimely. See 42 Pa.C.S.A. § 9545(b)(3).

      However, Pennsylvania courts may consider an untimely PCRA petition

if the appellant can explicitly plead and prove one of the three exceptions set

forth at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). To establish an exception to the

timeliness requirement, the Petitioner must plead and prove: 1) the failure

to raise the claim was the result of government interference; 2) the facts

upon which the claim is predicated were unknown and could not have been

discovered with due diligence; or 3) the right asserted is a Constitutional

right recognized by the Supreme Court of the United States or the Supreme

Court of Pennsylvania after the time period provided in the section, and the

court has held that it applies retroactively. Id. Any petition invoking one of

the exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2).

      Rhine   argues   that   his   prior   counsel,   Attorney   Michael   Fiorillo

(“Attorney Fiorillo), abandoned him by not filing the requested Notice of

appeal from the denial of his first PCRA Petition. Brief for Appellant at 17.



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Rhine argues that Attorney Fiorillo’s abandonment constitutes a newly

discovered fact under 42 Pa.C.S.A. § 9545(b)(1)(ii).1 See Commonwealth

v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007) (holding that pleading

abandonment of council is a sufficient factual basis to invoke the timeliness

exception at section 9545(b)(1)(ii)). Rhine also argues that Attorney Fiorillo

was ineffective in his counseling because he failed to file a Notice of appeal

after receiving a request from the Petitioner and Attorney Fiorillo’s failure to

raise the issue of the illegality of the Petitioner’s sentencing.       Brief for

Appellant at 17.

      Rhine has not demonstrated why he could not have earlier learned of

Attorney Fiorillo’s alleged failure to file an appeal from the denial of the first

PCRA Petition.     See 42 Pa.C.S.A. § 9545(b)(2); Brown 111 A.3d at 178.

Indeed, Rhine could have raised this issue in his second PCRA Petition.

Moreover, Rhine’s ineffectiveness of counsel claim does not meet one of the

three exceptions to the time bar. See Commonwealth v. Robinson, 873

A.2d 1157, 1162 (Pa. 2003) (stating that petitions alleging ineffectiveness of




1
  To establish the exception at section 9545(b)(i)(ii), the petitioner must
demonstrate “(a) the existence of facts that were unknown to him and (b)
his exercise of due diligence in discovering those facts.” Commonwealth v.
Brown, 111 A.3d 171, 179 (Pa. Super. 2015).


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counsel are still subject to the one year time bar).2

      We note that Rhine also raises illegality of sentence claims. However,

it is well-settled that courts cannot review legality of sentence claims where

it does not have jurisdiction. Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014).

      Because Rhine failed to overcome the untimeliness of his Petition, we

may not address the merits of his claim. See Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2003).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




2
  We note that Rhine appears to argue that the Clerk of Courts withheld
documents about Attorney Fiorillo’s failure to file an appeal. Even if the Clerk
of Courts withheld records from Rhine that would have allowed him to file his
Petition earlier, Rhine was required to file his Petition within 60 days of
discovering the interference. See 42 Pa.C.S.A. § 9545(b)(2).


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