J-S30027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACK E. ALLEN                              :
                                               :
                       Appellant               :   No. 1740 WDA 2019

             Appeal from the PCRA Order Entered October 18, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000738-1995


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 18, 2020

        Jack E. Allen appeals pro se from the order dismissing his Post

Conviction Relief Act (“PCRA”) petition as untimely. See 42 Pa.C.S.A. §§ 9541-

46. We affirm.

        In 1996, a jury convicted Allen of first-degree murder for the shooting

death of his wife, and the trial court sentenced him to life imprisonment. On

a nunc pro tunc direct appeal, we vacated the judgment of sentence and

remanded for a new trial. Commonwealth v. Allen, 895 A.2d 644 (Table)

(Pa.Super. 2006). He went to trial the second time in 2006, and a jury again

convicted him of first-degree murder, and the trial court imposed a life

sentence. We affirmed the judgment of sentence. Commonwealth v. Allen,




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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959 A.2d 456 (Table) (Pa.Super. 2008), appeal denied, 959 A.2d 927 (Table)

(Pa. filed October 14, 2008).

      Allen then filed his first PCRA petition in 2011 which the PCRA court

denied. Allen proceeded to file several PCRA petitions all of which were denied.

Allen filed the instant PCRA petition, entitled “Motion for New Trial,” on June

2, 2019. See Motion for New Trial, filed 6/2/19. The PCRA court issued a notice

of intent to dismiss the petition and eventually denied the petition. This timely

appeal followed.

      Allen raises the following issues before this court:

         1) WAS [ALLEN’S] CONSTITUTIONAL RIGHTS VIOLATED BY
         THE COMMONWEALTH COURTS, AS WELL AS, THE TRIAL
         COURT UP FRONT?

         2) DOES DNA TESTING OR EXAMINATIONS OF BLOOD
         SAMPLES PLAY A VITAL ROLE IN [ALLEN’S] CASE, AS WELL
         AS, TESTING AND OTHER EXAMINATIONS OF [ALLEN’S]
         WIFE[’]S CORPSE WHEN EXHUMED?

         3)  IS  THERE   SUCH   FALSIFIED  RECORDS   AND
         INFORMATION GIVEN CONSTITUTING A CRIME AMONGST
         COURTROOM OFFICIALS, AND FOR PERSONAL GAIN?

         4) WAS THERE IN ALL, SUCH FALSE IMPRISONMENT OF
         [ALLEN] BY AND THROUGH SUCH PERJURY OF WITNESSES
         OF THE PROSECUTION IN WHICH THE TRIAL COURT
         ABUSED ITS DISCRETION ALLOWING SUCH STATEMENTS
         TO STAND?

         5) WAS THERE SUCH PLAIN ERRORS; CONSTITUTIONAL
         ERRORS; AND MANY ERRORS OF THE TRIAL COURT WHERE
         PA RULES OF COURT WERE NOT FOLLOWED UNDER
         CRIMINAL PROCEDURES; PCRA PROCEDURES; APPELLATE
         PROCEDURES?




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       6) IS [ALLEN] INNOCENT OF THE CRIME CHARGED, AND
       SHOULD THERE BE A LESSER INCLUDED OFFENSE
       INDUCED, OR AN ACQUITTAL?

       7) WAS THERE A MANIFEST AND A SUBSTANTIAL DENIAL
       OF THE RIGHT TO AN ATTORNEY OF CHOICE, OR THE
       EFFECTIVE ASSISTANCE OF COUNSEL FOR TRIAL
       PURPOSES AT CRITICAL STAGES OF ALL PROCEEDINGS,
       INCLUDING TRIAL?

       8) WAS THERE A DEFINATE [sic] "ABANDONMENT" OF
       COURT APPOINTED COUNSELS IN SUCH FAULTY
       REPRESENTATION CONCERNING APPEALS; PCRAS, AND AT
       TRIAL CONCERNING THE PUBLIC DEFENDERS WHOSE
       DUTIES FELL BELOW PROFESSIONAL STANDARDS AND
       VIOLATED THE RULES OF PROFESSIONAL CONDUCT?

       9) WAS THERE A JUROR, NAMED RICK LONG, WHO BY THE
       RECORDS AND IN WHICH DID REFLECT THAT HE WAS
       BIASED, AND PREJUDICED,AND HAD ILL - WILL TOWARDS
       [ALLEN] DURING TRIAL WHEN KNOWING HIS BROTHER
       WAS KILLED AND MURDERED AND VIEWED [ALLEN] AS A
       KILLER PUTTING GUILT ALREADY IN HIS MIND SET ON
       GUILT?

       10) SHOULD THE TRIAL JUDGE AMMERMAN BEEN RECUSED
       FROM [ALLEN’S] TRIAL AND OTHER PROCEEDINGS BASED
       UPON SUCH BIASNESS, PREJUDICES: IMPROPRIETIES,
       AND ILLWILL TOWARDS [ALLEN]?

       11) SHOULD THERE BEEN A CHANGE OF VENUE AND
       VENIRE IN ANOTHER COUNTY, OR OTHER COUNTIES NOT
       ADJACENT TO CLEARFIELD COUNTY?

       12) DOES MITIGATING CIRCUMSTANCES OUTWEIGH
       AGGRAVATING CIRCUMSTANCES BRINGING ON A LESSER
       INCLUDED OFFENSE[?]

       13) DOES DOUBLE JEOPARDY PLAY A ROLE IN THIS CASE
       AT HAND, WHERE [ALLEN] WAS TRIED TWICE FOR THE
       SAME CRIMINAL ACT OR OFFENSE WITHOUT PROOF OF ALL
       ELEMENTS OF THE CRIME CHARGED?

       14) WAS [ALLEN’S] RIGHTS TO PSI'S; ALLOCUTION;
       SPEEDY TRIAL RIGHTS VIOLATED UNDER THE FIRST AND
       FOURTEENTH AMENDMENTS, U.S. CONSTITUTION, AS


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         WELL AS, APPELLATE RIGHTS TO FILE AN APPEAL TO THE
         SUPERIOR COURT OF SUCH DENIAL?

         15) WAS THERE SUCH "CAUSE AND PREJUDICE" SHOWN
         LEADING TOWARDS A "MISCARRIAGE OF JUSTICE", AND
         WHERE INNOCENCE OF [ALLEN] IS SHOWN THROUGHOUT
         THIS CASE AT HAND?

Allen’s Br. at 4-5.

      Upon a challenge to the denial of PCRA relief, we determine whether the

PCRA court's conclusions are supported by the record evidence and free of

legal error. Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super.

2015). Our standard of review of the legal determinations of a PCRA court is

de novo. Id.

      Allen’s petition was untimely and we therefore do not address the merits

of his PCRA petition. See Commonwealth v. Smith, 194 A.3d 126, 132

(Pa.Super. 2018). Any petition seeking PCRA relief must be filed within one

year after the petitioner’s judgment of sentence becomes final unless at least

one of three statutory exceptions applies. 42 Pa.C.S.A. § 9545(b). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

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

review.” Id. at § 9545(b)(3). Additionally, after the judgment of sentence has

become final, motions filed that raise issues “that can be addressed under the

PCRA is to be treated as a PCRA petition.” Commonwealth v. Taylor, 65

A.3d 462, 466 (Pa.Super. 2013) (restating conclusion that “any motion filed

after the finality of a sentence” should be treated as a PCRA petition if the


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issues raised in the motion fall under the PCRA). The timeliness of a PCRA

petition is jurisdictional in nature. Thus, if a PCRA petition is untimely, neither

an appellate court nor the trial court has jurisdiction over the petition.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (quoting

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      A petition filed beyond the one-year deadline must satisfy at least one

of the PCRA time-bar exceptions. These exceptions are: (1) governmental

interference in raising the claim, (2) newly discovered facts that could not

have been discovered with due diligence or (3) a newly recognized

constitutional right that has been recognized to apply retroactively. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petitioner raising a time-bar exception must

file the petition within one year from the time the petitioner could have first

claimed the exception. Id. at § 9545(b)(2).

      Here, Allen’s judgment of sentence became final on January 16, 2009,

when his time to appeal to the United States Supreme Court expired. See U.S.

Sup. Ct. R. 13.1. One year after that date was a Saturday, giving Allen until

the following Monday, January 18, 2010, to file a timely PCRA petition. See 1

Pa.C.S.A. § 1908. Thus, the instant petition, which Allen filed in 2019, is

facially untimely and Allen bore the burden of pleading and proving at least

one of the time-bar exceptions. See Taylor, 65 A.3d at 466. Allen did not

address timeliness in his PCRA petition or attempt to raise one of the time-bar

exceptions. He fails to do so even on appeal. Because his petition was filed

more than nine years after his judgment of sentence became final, and he did

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not plead a time-bar exception in his PCRA petition, the PCRA court did not

err in dismissing Allen’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2020




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