J-S87006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GREGORY LEROY PACKER,

                            Appellant                   No. 519 MDA 2016


                   Appeal from the PCRA Order March 9, 2016
               in the Court of Common Pleas of Lycoming County
               Criminal Division at No.: CP-41-CR-0000412-2008


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 06, 2017

        Appellant, Gregory Leroy Packer, appeals pro se from the denial of his

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

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

        On November 18, 2008, a jury convicted Appellant of involuntary

deviate sexual intercourse with a child and indecent assault of a person less

than thirteen years of age1 for his perpetration of various sexual acts upon

his seven-year-old daughter.         On May 13, 2009, the trial court sentenced

Appellant to an aggregate term of not less than fifteen years and three

months nor more than forty-seven years’ incarceration, plus a $10,000.00
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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7), respectively.
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fine. The court also found that Appellant is a sexually violent predator (SVP)

subject to lifetime registration. The court denied his post-sentence motion.

On October 27, 2010, this Court affirmed Appellant’s conviction, but vacated

the fine and remanded the case to the trial court for a hearing regarding his

ability to pay.2     (See Commonwealth v. Packer, No. 1114 MDA 2009,

unpublished memorandum, at **22-23, 28-29 (Pa. Super. filed Oct. 27,

2010)).    Appellant did not file a request for permission to appeal with the

Pennsylvania Supreme Court.

       On June 8, 2015, Appellant filed a pro se motion to correct illegal

sentence nunc pro tunc, which the court treated as a first PCRA petition.

The court appointed counsel, who filed a motion to withdraw and

Turner/Finley3 no merit letter on August 14, 2015.          On December 10,

2015, the court provided notice of its intention to dismiss Appellant’s petition

without a hearing.        See Pa.R.Crim.P. 907(1).    Appellant responded on

January 4, 2016. The court denied the petition on March 9, 2016. Appellant

timely appealed.4

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2
  On December 22, 2010, after a hearing, the trial court determined
Appellant could not pay a fine, and therefore did not impose one.
3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
  On June 27, 2016, although not ordered to do so, Appellant filed a concise
statement of errors complained of on appeal; the court filed an opinion on
July 18, 2016. See Pa.R.A.P. 1925.



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      Appellant raises nine questions for this Court’s review:

      1.    Did the court err in dismissing Appellant’s PCRA [petition]
      on timeliness?

      2.    Was Appellant denied effective assistance of counsel by
      Trisha Hoover when she failed to file requested appeal to the
      Pennsylvania Supreme Court?

      3.    Is Appellant’s sentence unconstitutional?

      4.    Is Megan’s Law unconstitutional?

      5.  Did Rhonda McDonald violate Appellant’s constitutional and
      amendment rights?

      6.  Did Trooper Barnhart violate Appellant’s constitutional and
      amendment rights?

      7.    Did counsel Christian Kalaus, Asst. District Attorney
      Melissa Rosenkilde and Judge William S. Kieser violate
      Appellant’s constitutional and amendment rights?

      8.   Did counsel Trisha Hoover violate Appellant’s constitutional
      and amendment rights?

      9.    Was Appellant’s constitutional and amendment rights
      violated during the entire criminal proceedings?

(Appellant’s Brief, at 12) (some capitalization omitted).

      Our standard of review of the court’s denial of a PCRA petition is well-

settled:

            Our standard of review of a PCRA court’s dismissal of a
      PCRA petition is limited to examining whether the PCRA court’s
      determination is supported by the record evidence and free of
      legal error. Before addressing the merits of Appellant’s claims,
      we must first determine whether we have jurisdiction to
      entertain the underlying PCRA petition.




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Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016)

(citations omitted)

      Here, the PCRA court found that it lacked jurisdiction because

Appellant’s petition was untimely and he failed to plead and prove any

exception to the PCRA time-bar. (See Order, 3/09/16, at 1). We agree.

      It is well-settled that:

      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 case sub judice, Appellant’s judgment of sentence became final

on November 26, 2010, at the expiration of the time for him to seek review

in our Supreme Court.      See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had one year from that date to file a petition for collateral

relief unless he pleaded and proved that a timing exception applied. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on




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June 8, 2015, is untimely on its face and we will only review its merits if he

pleads and proves one of the statutory exceptions to the time-bar.

             The three statutory exceptions to the timeliness provisions
      in the PCRA allow for very limited circumstances under which the
      late filing of a petition will be excused. [See] 42 Pa.C.S.A. §
      9545(b)(1). To invoke an exception, a petition must allege and
      the petitioner must prove:

                  (i) the failure to raise a claim previously was
            the result of interference by government officials
            with the presentation of the claim in violation of the
            Constitution or the law of this Commonwealth or the
            Constitution or law 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
            Pennsylvania after the time period provide[d] in this
            section and has been held by that court to apply
            retroactively.

            We emphasize that it is the petitioner who bears the
      burden to allege and prove that one of the timeliness exceptions
      applies.

Whitehawk, supra at 269-70 (case citation and quotation marks omitted).

Further, “[i]f the 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. Johnston, 42 A.3d 1120, 1126 (Pa.

Super. 2012) (citation omitted). Also, a PCRA petition invoking one of these




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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).

      Here, Appellant attempts to prove the applicability of the newly

discovered facts exception. (See Appellant’s Brief, at 21, 26); see also 42

Pa.C.S.A. § 9545(b)(1)(ii).      Specifically, he claims that trial counsel’s

ineffectiveness, i.e. her failure to file a petition for allowance of appeal and

subsequent withdrawal, constituted a newly discovered fact pursuant to 42

Pa.C.S.A. § 9545(b)(1)(ii). (See Appellant’s Brief, at 21, 26). Additionally,

although not expressly phrased as such, he appears to invoke the newly

recognized constitutional right exception by relying on the decisions in

Alleyne v. United States, 133 S.Ct. 2151 (2013), and its progeny. (See

id. at 28, 30-31); see also 42 Pa.C.S.A. § 9545(b)(1)(iii).           However,

Appellant’s reliance on these exceptions is unavailing because he has failed

to plead and prove their applicability.

      First, we observe:

             With respect to subsection 9545(b)(ii), we have previously
      described this exception, which permits an untimely claim where
      the facts upon which the claim is predicated were unknown to
      the [appellant] and could not have been ascertained by the
      exercise of due diligence, as an exception for after-discovered
      evidence. Thus, a claim that counsel was ineffective will not
      save an untimely PCRA petition. Finally, the exceptions to the
      PCRA’s one-year time limit require the petitioner to file his PCRA
      petition within sixty days of the date the claim could have first
      been brought.      Thus, the petitioner must plead and prove
      specific facts that demonstrate his claim was raised within the
      sixty-day time frame of subsection 9545(b)(1)(ii).




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Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001) (citations

and quotation marks omitted).

     In this case, Appellant maintains that trial counsel advised him in a

November 1, 2010 letter that this Court affirmed his conviction, and that he

thereafter told her several times that he wished to seek permission to appeal

in the Pennsylvania Supreme Court. (See Appellant’s Brief, at 19; see also

PCRA Court Opinion, 7/18/16, at 5-6). However, as observed by the PCRA

court:

     Although many of the letters tend to show that Appellant wanted
     his counsel to file an appeal to the Pennsylvania Supreme Court,
     they do not show that his petition is timely. Instead, they show
     a gap of about [three-and-one-half] years from roughly the end
     of 2011 until the filing of Appellant’s petition on June 8, 2015.
     Appellant failed to allege any steps he took to determine the
     status of his appeal during this time period. Diligence demands
     that Appellant take reasonable steps to protect and further his
     interests. See Carr, supra at 1168. Based on Appellant’s own
     pleadings and the reasonable inferences that can be drawn
     therefrom, Appellant did not exercise diligence from the end of
     2011 through the filing of his petition in 2015. Furthermore, the
     mere fact that Appellant alleged that counsel was ineffective for
     failing to file his requested appeal does not save his petition
     from the PCRA’s timeliness requirements. See id. Therefore,
     Appellant’s claims that counsel failed to file a requested appeal
     to the Pennsylvania Supreme Court are untimely.

(PCRA Ct. Op., at 5-6) (citation formatting provided).   We agree with the

sound reasoning of the PCRA court.     Appellant has failed to establish the

applicability of the newly discovered facts exception to the PCRA time-bar

where he has not shown that he acted with due diligence. See Carr, supra

at 1168 (“absent assertions of due diligence, the mere discovery of trial


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counsel’s failure to file a direct appeal, after the one-year window to file a

PCRA petition, does not place Appellant under subsection 9545(b)(1)(ii)”).

       Next, although not phrased as such, Appellant is attempting to claim

the applicability of the newly recognized constitutional right exception. (See

Appellant’s Brief, at 31).        Specifically, he alleges that the United States

Supreme Court’s reasoning in Alleyne5 should be applied retroactively to his

case.6 (See id.). However, the Pennsylvania Supreme Court has expressly

held that “Alleyne does not apply retroactively to cases pending on

collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820

(Pa. 2016).     Therefore, Appellant’s reliance on Alleyne and its progeny is

fatal to his claim. Hence, this argument also fails.

       Accordingly,    because      Appellant    failed   to   plead   and   prove   the

applicability of a PCRA timeliness exception, we conclude that the PCRA

court properly dismissed his untimely petition without a hearing on the basis




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5
  In Alleyne, the Supreme Court of the United States held that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
must be found beyond a reasonable doubt. Alleyne, supra at 2163.
6
  The Supreme Court decided Alleyne on June 17, 2013. Appellant filed the
instant petition nearly two years later, on June 8, 2015, thus violating the
sixty-day requirement of 42 Pa.C.S.A. § 9545(b)(2). See 42 Pa.C.S.A. §
9545(b)(2).




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that it lacked jurisdiction.7       See Whitehawk, supra at 269; Johnston,

supra at 1126.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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7
  We also note that Appellant’s assertion that legality of sentence challenges
cannot be time-barred, as a matter of law, (see Appellant’s Brief, at 29), is
legally unpersuasive. To the contrary, “[t]hough not technically waivable, a
legality [of sentence] claim may nevertheless be lost should it be raised . . .
in an untimely PCRA petition for which no time-bar exception applies, thus
depriving the [C]ourt of jurisdiction over the claim. . . .” Commonwealth
v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation omitted).



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