J-S35035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLINTON HITNER,

                            Appellant                  No. 45 EDA 2015


               Appeal from the PCRA Order November 17, 2014
                 in the Court of Common Pleas of Bucks County
              Criminal Division at Nos.: CP-09-CR-0002015-2004;
                            CP-09-CR-0002016-2004


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 02, 2015

        Appellant, Clinton Hitner, appeals pro se from the order dismissing his

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

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the relevant factual and procedural history of this case from

the PCRA court’s February 9, 2015 opinion and our independent review of

the record. On February 11, 2005, following a five-day trial, a jury found

Appellant guilty of two counts each of rape, kidnapping,1 and related

offenses. Appellant’s conviction stems from his abduction and brutal rape of

two women, L.H. and J.S., in January of 2004.              On October 6, 2005,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(a) and 2901, respectively.
J-S35035-15



following a hearing, the trial court sentenced Appellant to an aggregate term

of not less than forty nor more than eighty years’ imprisonment. The court

also determined that Appellant is a sexually violent predator pursuant to

Pennsylvania’s Megan’s Law III.2

        Appellant filed a direct appeal, and this Court affirmed the judgment of

sentence on October 27, 2006. (See Commonwealth v. Hitner, 910 A.2d

721 (Pa. Super. 2006)). Our Supreme Court denied Appellant’s petition for

allowance of appeal on May 22, 2007.              (See Commonwealth v. Hitner,

926     A.2d   441   (Pa.    2007)).       It   denied   Appellant’s   application   for

reconsideration of the petition for allowance of appeal on June 22, 2007.

(See id.).

        On March 28, 2008, Appellant, acting pro se, filed a timely first PCRA

petition.    The PCRA court held a hearing and denied the petition by order

entered November 26, 2008. Appellant filed an appeal with this Court, and

we remanded the case with instructions to the PCRA court to conduct a

hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

The PCRA court held a hearing at which Appellant confirmed his desire to

proceed without counsel.        The court determined that Appellant’s waiver of

counsel was knowing, voluntary, and intelligent. On December 6, 2010, this

Court affirmed the order denying his PCRA petition. (See Commonwealth


____________________________________________


2
    See 42 Pa.C.S.A. §§ 9791-9799.8 (expired).



                                           -2-
J-S35035-15



v. Hitner, 23 A.3d 568 (Pa. Super. 2010) (unpublished memorandum)). On

December 20, 2010, before Appellant’s time for filing a petition for allowance

of appeal in our Supreme Court expired, he filed another pro se PCRA

petition.   The PCRA court did not rule on this petition, or its subsequent

amendments, based on Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.

2000).

       On September 2, 2014, Appellant filed the instant pro se PCRA

petition. On October 28, 2014, the PCRA court issued notice of its intent to

dismiss the petition without a hearing, see Pa.R.Crim.P. 907(1), stating that

the petition is untimely with no enumerated exception proven.         (See Rule

907 Notice, 10/28/14, at unnumbered pages 1-2).                Appellant did not

respond. On November 17, 2014, the court entered its order denying the

petition. This timely appeal followed.3

       Appellant raises the following issues for our review:

       1)    Did the [PCRA] court . . . abuse [its] discretion in denying e [sic]
       evidentiary hearing on new trial [PCRA] petition based on ineffective
       assistance of counsel, prosecutorial misconduct, actual innocence,
       governmental interferences when claims were supported by adequate
       factual specification “[]beyond bald speculations[]”[?]

       2)    Did the [PCRA] court . . . abuse [its] discretion in denying
       evidentiary hearing on new trial [PCRA] petition when witnesses
       against [Appellant] provided what is proven to be false testimony[]

____________________________________________


3
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). The court filed an opinion
on February 9, 2015. See Pa.R.A.P. 1925(a).



                                           -3-
J-S35035-15


       an[d] no physical evidence against [Appellant] existed to support the
       claims of rape[?]

       3)     Would any reasonable juror found [sic] [Appellant] guilty of rape
       if the prosecutor did not provide the juror’s [sic] with misstatement’s
       [sic] of evidence and inflammatory remark’s [sic] and if the [trial]
       court did not withhold [crucial] evidence from the juror’s [sic]
       proposed answer[]?

       4)    Did the [PCRA] court abuse it’s [sic] discretion by time barring
       [A]ppellant’s [PCRA] petition when a sentencing order has not been
       issued[?]

       5)   Can the appeal time tolling clock start to run before the
       sentencing order is issued for said cases[?]

       6)    Did the [trial court] . . . abuse [its] discretion by withholding the
       closing arguments from . . . [A]ppellant and then destroying the notes
       of said arguments without ever transcribing them first[?]

(Appellant’s Brief, at 5-6).4

       Our standard of review of a trial court order granting or denying
       relief under the PCRA calls upon us to determine 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 is no support for the findings in the
       certified record.
____________________________________________


4
   Although Appellant purports to raise six issues in his statement of the
questions involved, his argument section is comprised of only three issues,
in violation of Pennsylvania Rules of Appellate Procedure 2116(a) and
2119(a). Specifically, in the argument section, he asserts: “[1] Appellant
was denied [a]n effective and [constitutionally] sound appeal[] when parts
of the trial notes were destroyed by the [trial] court without ever being
transcribed[;] [2] Appellant was denied the effective assistance of counsel at
trial, during closing arguments [and] at all other meaningful points of
appellant [sic] review[;] [and 3] [Appellant’s] Equal Protection [rights] were
violated when the [trial] court . . . abuse[d] [its] discretion by withholding
evidence from the juror’s [sic] which proved Appellant’s actual innocence of
these crimes of rape.” (Appellant’s Brief, at 12, 16, 24) (some capitalization
omitted).



                                           -4-
J-S35035-15



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

(citations and quotation marks omitted).

     “[W]e must first consider the timeliness of Appellant’s PCRA petition

because it implicates the jurisdiction of this Court and the PCRA court.”

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation

omitted).

     A PCRA petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the
     three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
     judgment becomes final at the conclusion of direct review by this
     Court or the United States Supreme Court, or at the expiration
     of the time for seeking such review.             42 Pa.C.S.[A.] §
     9545(b)(3).      The   PCRA’s     timeliness    requirements     are
     jurisdictional; therefore, a court may not address the merits of
     the issues raised if the petition was not timely filed.          The
     timeliness requirements apply to all PCRA petitions, regardless of
     the nature of the individual claims raised therein. The PCRA
     squarely places upon the petitioner the burden of proving an
     untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

     In the instant case, Appellant’s judgment of sentence became final on

September 20, 2007, when his time to file a petition for writ of certiorari

with the United States Supreme Court expired. See U.S. Sup.Ct. R. 13(1),

(3); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had one year from that date




                                    -5-
J-S35035-15



to file a petition for collateral relief, specifically, until September 22, 2008.5

See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition

on September 2, 2014, it is untimely on its face, and the PCRA court lacked

jurisdiction to review it unless he pleaded and proved one of the statutory

exceptions to the time-bar. See id. at § 9545(b)(1)(i)-(iii).

       Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

       (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.

Id. “If the [PCRA] petition is determined to be untimely, and no exception

has been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”      Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted). In
____________________________________________


5
  The last day of the one-year period, September 20, 2008, fell on a
Saturday. Accordingly, Appellant had until that Monday to file a petition for
writ of certiorari. See 1 Pa.C.S.A. § 1908.



                                           -6-
J-S35035-15



addition, a PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claim could have been presented.”

42 Pa.C.S.A. § 9545(b)(2).

      Our Supreme Court “has repeatedly stated it is the appellant’s burden

to allege and prove that one of the timeliness exceptions applies.”

Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2006) (citation

omitted). Therefore, an appellant must acknowledge that his PCRA petition

is untimely, and demonstrate that one or more of the statutory exceptions

applies. See Commonwealth v. Wharton, 886 A.2d 1120, 1125-26 (Pa.

2005).

      Here, the Commonwealth contends that Appellant has failed to raise,

plead,   or   establish   any   valid   exception   to   the   PCRA’s   timeliness

requirements. (See Commonwealth’s Brief, at 19-20). After review of the

record, we agree.     Appellant’s brief largely consists of a rambling, often

incoherent series of allegations of trial court error, prosecutorial misconduct,

and ineffective assistance of counsel. (See Appellant’s Brief, at 12-31). He

does not acknowledge that his PCRA petition is facially untimely, or attempt

to demonstrate the applicability of any of the enumerated time-bar

exceptions. (See id.). Accordingly, we conclude that Appellant has not met

his burden of proving his untimely petition fits within one of the three limited

exceptions to the PCRA’s time-bar.       See Jones, supra at 17.        The PCRA

court properly dismissed Appellant’s petition as untimely with no exception

to the time-bar pleaded or proven.

                                        -7-
J-S35035-15



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




                          -8-
