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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
BARRY R. BUCHTER,                         :         No. 1131 MDA 2017
                                          :
                        Appellant         :


                 Appeal from the PCRA Order, June 21, 2017,
              in the Court of Common Pleas of Lancaster County
               Criminal Division at No. CP-36-CR-0002916-2011


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 27, 2018

      Barry R. Buchter appeals pro se from the order filed in the Court of

Common Pleas of Lancaster County that dismissed his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Because we agree with the PCRA court that appellant’s facially untimely

petition failed to establish a statutory exception to the one-year jurisdictional

time limit for filing a petition under the PCRA, we affirm.

      The PCRA court set forth the following factual and procedural history in

its opinion filed September 7, 2017:

                  On January 10, 2012, after a jury trial,
            [appellant] was convicted of one count of
            rape,[Footnote 1] four counts of involuntary deviate
            sexual intercourse with a person less than 16 years
            of age,[Footnote 2] two counts of aggravated
            indecent assault of a person less than 16 years of
            age,[Footnote 3] one count of incest,[Footnote 4]
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          one count of unlawful contact with a minor,
          [Footnote 5] one count of corruption of a
          minor[Footnote 6] and two counts of indecent
          assault of a person less than 16 years of
          age.[Footnote 7]     On April 17, 2012, he was
          sentenced to an aggregate term of 24 to 48 years[’]
          incarceration followed by five years[’] consecutive
          probation.

               [Footnote 1] 18 Pa.C.S.[A.] § 3121(a)(2).

               [Footnote 2] 18 Pa.C.S.[A.] § 3123(a)(7).

               [Footnote 3] 18 Pa.C.S.[A.] § 3125(a)(8).

               [Footnote 4] 18 Pa.C.S.[A.] § 4302.

               [Footnote 5] 18 Pa.C.S.[A.] § 6813(a)(1).

               [Footnote 6] 18 Pa.C.S.[A.] § 6301(a)(1).

               [Footnote 7] 18 Pa.C.S.[A.] [§] 3126(a)(8).

                The judgment of sentence was affirmed on
          April 5, 2013. Commonwealth v. Buchter, 75
          A.3d 546 (Pa.Super. 2013) (table). [Appellant] did
          not seek further review in the Pennsylvania Supreme
          Court.

                On April 15, 2013, [appellant] filed a pro se
          motion for post conviction collateral relief and
          counsel was appointed. Counsel filed an amended
          motion on July 29, 2014.         After a hearing on
          [appellant’s] motion on October 28, 2014, the
          [c]ourt entered an order denying the motion on
          August 31, 2015. [Appellant] filed his notice of
          appeal on September 16, 2015, and the Superior
          Court affirmed this [c]ourt’s decision on May 17,
          2016. Commonwealth v. Buchter, 151 A.3d 1150
          (Pa.Super. 2016) (table).       The Supreme Court
          denied [appellant’s] petition for allowance of appeal
          on September 13, 2016.           Commonwealth v.
          Buchter, 157 A.[3]d 483 (Pa. 2016) (table).



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                 [Appellant] filed a second pro se motion for
          post conviction collateral relief on October 3, 2016,
          and counsel was again appointed for him.            On
          December 30, 2016, counsel sent a no merit
          letter[Footnote 8] to [appellant], with a copy to the
          [c]ourt, expressing his opinion that [appellant’s]
          motion was untimely and that the court lacked
          jurisdiction to hear it. On January 9, 2017, and
          again on March 16, 2017, [appellant] filed pro se
          motions to re-appoint reliable counsel to amend the
          motion for post[-]conviction collateral relief, but he
          presented no new evidence which would affect
          counsel’s conclusion. Counsel filed a brief response
          on April 5, 2017, reiterating the original no merit
          letter and noting that [appellant] had failed to
          present evidence to establish the             [c]ourt’s
          jurisdiction.

                [Footnote 8] Commonwealth v. Finley,
                [] 550 A.2d 213 ([Pa.Super.] 1988).

                 After conducting its own review, the [c]ourt
          filed a Rule 907 notice on April 21, 2017, advising
          [appellant] of its intent to dismiss the motion and
          explaining the reasons for that decision. [Appellant]
          filed a pro se response which was docketed on
          May 26, 2017,[Footnote 9] in which he reasserted
          his claim that he was serving an illegal sentence and
          was entitled to relief under the United States
          Supreme Court’s decision in Alleyne v. United
          States, 570 U.S. [99] (2013). The [c]ourt entered
          an order dismissing [appellant’s] motion for lack of
          jurisdiction and granting counsel leave to withdraw
          on June 21, 2017.

                [Footnote 9] Although this response was
                docketed after passage of the 20 days
                the [c]ourt had granted [appellant] to
                respond, it was treated as timely
                because it was post[-]marked May 9,
                2017.

               [Appellant] filed his pro se notice of appeal of
          that decision on July 20, 2017, and his concise


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            statement of errors complained of on appeal on
            August 3, 2017. In his concise statement of errors
            complained of on appeal, [appellant] raises five
            allegations of ineffective assistance of counsel
            against his original trial counsel, a claim that police
            violated his constitutional right not to be questioned
            outside the presence of his attorney and a claim that
            the [c]ourt had imposed an illegal sentence.

Trial court opinion, 9/7/17 at 1-3.

      Appellant raises the following issues for this court’s review:

            I.     Was counsel ineffective for failure to properly
                   (pre_trial [sic]) challenge a breach in the
                   chain-of-custody     regarding    physical/DNA
                   evidence used at trial[?]

            II.    Counsel was ineffective for failure to challenge
                   impeachment evidence regarding testimony of
                   arresting officer[.]

            III.   Counsel was ineffective for failure to challenge
                   and/or assert exculpatory evidence offered by
                   Doctor Julie Stover and RN Kimberly Sbarra
                   regarding rape kit showing no evidence of
                   sexual intercourse[.]

            IV.    It was ineffective assistance of counsel for
                   failure   to   challenge   and/or    suppress
                   inculpatory statement made by [appellant]
                   after invoking Fifth Amendment rights without
                   benefit of Miranda[1] warnings, and/or
                   statement being coerced[.]

            V.     Counsel was ineffective for failure to introduce
                   exculpatory evidence of daughter’s statement
                   averring actual innocense [sic] of [appellant.]

            VI.    Counsel was ineffective for failure to examine
                   material    witness/alibi   to     [appellant’s]
                   innocense [sic][.]

1Miranda   v. Arizona, 384 U.S. 436 (1966).


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            VII.   Did the trial court impose an illegal sentence
                   on [appellant] in violation of the double
                   jeopardy clause, when the court abused
                   it’s [sic]  discretion  by    seperately   [sic]
                   sentencing [appellant] to a consecutive five (5)
                   years[’] probation[?]

Appellant’s brief at 2, 6 (capitalization omitted).

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether
            the trial court’s determination is supported by
            evidence of record and whether it is free of legal
            error. Commonwealth v. Jermyn, 709 A.2d 849,
            856 (Pa. 1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that    judgment    of   sentence   becomes     final.
            42 Pa.C.S.[A.] § 9545(b)(1). A judgment becomes
            final for purposes of the PCRA “at the conclusion of
            direct review, including discretionary review in the
            Supreme Court of the United States and the
            Supreme Court of Pennsylvania, or the expiration of
            time for seeking the review.”         42 Pa.C.S.[A.]
            § 9543(b)(3). PCRA time limits are jurisdictional in
            nature, implicating a court’s very power to
            adjudicate a controversy. Commonwealth v. Fahy,
            737 A.2d 214 (Pa. 1999). Accordingly, the “period


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             for filing a PCRA petition can be extended only if the
             PCRA permits it to be extended, i.e., by operation of
             one of the statutorily enumerated exceptions to the
             PCRA time-bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014). Before addressing appellant’s issues on the merits,

we must first determine if we have jurisdiction to do so.

        As noted above, a PCRA petitioner has one year from the date his or

her judgment of sentence becomes final in which to file a PCRA petition.

This court has held the following regarding when a judgment becomes final:

             The plain language of the PCRA provides that a
             judgment of sentence becomes final at the
             conclusion of direct review or when the time seeking
             direct review expires.            See 42 Pa.C.S.A.
             § 9545(b)(3).     In fixing the date upon which a
             judgment of sentence becomes final, the PCRA does
             not refer to the conclusion of collateral review or the
             time for appealing a collateral review determination.
             Thus, the plain language of the PCRA statute shows
             that a judgment of sentence becomes final
             immediately upon expiration of the time for seeking
             direct review, even if other collateral proceedings are
             still ongoing.     As this result is not absurd or
             unreasonable, we may not look for further
             manifestations     of   legislative   intent.      See
             Commonwealth v. Hall, 80 A.3d 1204, 1211 (Pa.
             2013) (internal quotation marks omitted) (We may
             “look beyond the plain language of the statute only
             when words are unclear or ambiguous, or the plain
             meaning would lead to a result that is absurd,
             impossible of execution, or unreasonable.”).

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa.Super. 2014).

        In the instant case, the trial court sentenced appellant on April 17,

2012.     He filed a direct appeal to this court.     This court affirmed the


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judgment of sentence on April 5, 2013.       Commonwealth v. Buchter, 75

A.3d 546 (Pa.Super. 2013).       Appellant did not petition for allowance of

appeal with the Pennsylvania Supreme Court.            Accordingly, appellant’s

judgment of sentence became final on May 6, 2013.2          Appellant filed the

instant petition on October 3, 2016, more than three years after his

judgment became final and more than two years after a PCRA petition could

be considered timely. See 42 Pa.C.S.A. § 9545(b)(1).

     As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

           (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 Normally, the deadline would be May 5, 2013. However, May 5, 2013 was
a Sunday. The deadline to file an allocator petition is extended to the next
business day. 1 Pa.C.S.A. § 1908.


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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      Here, appellant fails to demonstrate any of the exceptions to the PCRA

time-bar. In the first six issues appellant brings to this court for its review,

appellant asserts that his trial counsel was ineffective for various reasons.

These issues address the substantive question of whether he is entitled to

relief under the PCRA but do not address whether he meets an exception to

the time bar.

      In his remaining issue appellant contends that the trial court imposed

an illegal sentence because he was sentenced to a mandatory minimum

sentence in violation of Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016)

which applied Alleyne v. United States, 570 U.S. 99 (2013), on a direct

appeal.   He also states that the imposition of a five-year probationary

sentence was illegal because it made his sentence eight months over the

maximum sentence that could have been issued, that the consecutive

five-year probationary term was illegal because a mandatory sentence had

already been imposed, and that he was sentenced twice for the same

offense with a term of confinement and a term of probation.

      To the extent appellant is arguing that his sentence is illegal, this claim

does not allow him to skirt the timeliness requirement. “[E]ven claims that

a sentence was illegal, an issue deemed incapable of being waived, are not


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beyond the jurisdictional time restrictions.”   Commonwealth v. Grafton,

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, 737 A.2d 214 (Pa.

1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).

Therefore, appellant’s illegal sentencing claim does not operate as an

independent exception to the PCRA’s jurisdictional time-bar.    Furthermore,

with respect to Alleyne, the Pennsylvania Supreme Court determined in

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016), that

Alleyne does not apply retroactively to cases pending on collateral review.

Therefore, we find that appellant failed to establish that he met an exception

to the timeliness requirements of the PCRA.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/27/2018




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