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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

DAVID R. WINWOOD

                            Appellant                      No. 957 WDA 2016


                   Appeal from the PCRA Order May 11, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012033-1985


BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED APRIL 20, 2017

        David R. Winwood appeals pro se from the trial court’s order

dismissing, as untimely, his petition filed pursuant to the Post Conviction

Relief Act (PCRA).1 Winwood’s petition is patently untimely and he does not

meet a time-bar exception under the PCRA. Thus, we affirm.

        In 1986, Winwood was found guilty of rape, statutory rape, sexual

abuse of children, involuntary deviate sexual intercourse, and indecent

assault, spousal sexual assault, and simple assault; the victims of his

criminal behavior were his wife and step-children.                On April 17, 1987,

Winwood      was    sentenced      to   an     aggregate   term    of   32-64   years’
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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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imprisonment.        Winwood     filed    an    unsuccessful       direct    appeal,

Commonwealth        v.   Winwood,    3551      A.2d   589   (Pa.    Super.    1988)

(unpublished memorandum) and petition for allowance of appeal with the

Pennsylvania Supreme Court. See Commonwealth v. Winwood, 559 A.2d

37 (Pa. filed July 16, 1989).

      On October 8, 1995, Winwood filed a pro se PCRA petition; counsel

was appointed and filed an amended petition on his behalf.             On June 6,

1996, the court dismissed the petition without a hearing. Winwood filed an

appeal from that decision; our Court affirmed the dismissal of his petition on

January 17, 1997.        See Commonwealth v. Winwood, No. 01241

Pittsburgh 1996 (Pa. Super. filed Jan. 17, 1997).       On February 18, 1997,

Winwood filed a petition for allowance of appeal, which the Supreme Court

denied on January 13, 1998.

      On November 23, 2015, Winwood filed the current pro se PCRA

petition, his second.    Counsel was appointed, but was granted leave to

withdraw.     On January 27, 2016, the court appointed Attorney Brian

McDermott to represent Winwood.          Attorney McDermott filed a motion to

withdraw. On April 25, 2016, the court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Winwood’s PCRA petition without a hearing. On May 12,

2016, the court granted counsel’s request to withdraw and dismissed

Winwood’s petition as untimely.     Winwood filed a timely pro se notice of




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appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal.

       In his petition, Winwood raises claims of counsel’s ineffectiveness, the

unconstitutionality of his sentence as a result of improper charging and

illegal informations, and an alleged new fact -- the lack of indications of

trauma in one of the victim’s medical records from 1985.              Because

Winwood’s petition is facially untimely and he has failed to plead and prove a

recognized exception to the PCRA’s timeliness requirements, the trial court

properly dismissed his petition.2

       Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Alcorn, 703 A.2d

1054 (Pa. Super. 1997).            There are, however, exceptions to the time

requirement, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i),(ii), and (iii). Where

the petition alleges, and the petitioner proves, that an exception to the time

for filing the petition is met, the petition will be considered timely. These

exceptions include interference by government officials in the presentation of

the claim, after-discovered facts or evidence, and an after-recognized

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2
 The standard of review of an order denying a PCRA petition is whether that
determination 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.    Commonwealth v.
Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012).



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constitutional right.   See Commonwealth v. Gamboa-Taylor, 753 A.2d

780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). A PCRA petition invoking

one of these exceptions must “be filed within 60 days of the date the claims

could have been presented.” Id.; see also 42 Pa.C.S.A. § 9545(b)(2). The

timeliness requirements of the PCRA are jurisdictional in nature and,

accordingly, a PCRA court cannot hear untimely petitions. Commonwealth

v. Robinson, 837 A.2d 1157 (Pa. 2003).

      Instantly, Winwood’s judgment of sentence became final on July 16,

1989, when his time for filing a writ of certiorari to the United States

Supreme Court had expired. See 42 Pa.C.S.A. § 9545 (b)(3); Sup. Ct. R.

13.   Thus, Winwood had one year from that date, or until July 16, 1990, to

file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). Winwood did not

file the instant petition until November 23, 2015, more than twenty-five

years after his judgment of sentence became final.      Thus, his petition is

patently untimely.

      Nevertheless, Winwood attempts to invoke an exception to the time

restrictions of the PCRA, specifically the exception contained in 42 Pa.C.S.A.

§ 9545(b)(1)(ii). Under section 9545(b)(1)(ii), a petitioner must allege and

prove that “the facts under which the claim is predicated were unknown to

the petitioner and could not have been ascertained by the exercise of due

diligence.”   Id.   See Commonwealth v. Bennett, 930 A.2d 1264, 1272

(Pa. 2007) (under subsection (b)(1)(ii), “[d]ue diligence demands that the


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petitioner take reasonable steps to protect his own interests . . . [by] . . .

explain[ing] why he could not have learned the new fact(s) earlier with the

exercise of due diligence. This rule is strictly enforced.”).

      Winwood’s assertions that he was improperly charged and that the

information   was    illegally    obtained,    rendering    an    inconsistent   and

unconstitutional verdict, do not fit within an exception to the PCRA time bar.

Moreover, Winwood’s claim that trial counsel was ineffective for failing “to

examine and pursue [the] records/documents from the medical exam . . . of

the alleged victim,” Appellant’s Brief, at 12, is nothing more than a veiled

attempt to invoke our review of an ineffectiveness claim in his otherwise

untimely filed petition.   See Commonwealth v. Lesko, 15 A.3d 345 (Pa.

2011) (defendant’s efforts to couch claims in terms of ineffectiveness of

counsel cannot save otherwise untimely petition).           It is well-settled that

ineffectiveness   claims   are    not   a   covered   exception     to   the   timing

requirements of the PCRA. See Commonwealth v. Breakiron, 781 A.2d

94   (Pa.   2001).      Rather,     Winwood     should     have   raised   counsel’s

ineffectiveness in a prior, timely petition.

      Finally, Winwood does not explain when he discovered the victim’s

medical record, why the existence of these medical records were unknown to

him at the time of trial, and why they could not have been obtained earlier

by the exercise of due diligence. Bennett, supra. Accordingly, the PCRA

court properly dismissed Winwood’s petition as untimely and correctly


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determined that he failed to plead and prove a PCRA exception under section

9545(b)(1). Johnston, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2017




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