J-S32042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT L. HINES, III,

                            Appellant                No. 2353 EDA 2015


                    Appeal from the PCRA Order July 14, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0606671-1997


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

MEMORANDUM BY PLATT, J.:                              FILED MAY 11, 2016

        Appellant, Robert L. Hines, III, appeals pro se from the order of July

14, 2015, dismissing his serial, fourth petition, filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We

affirm.

        On June 11, 1998, following a bench trial, the trial court convicted

Appellant of murder of the first degree, and related offenses. The charges

arose out of the then nineteen-year-old Appellant’s 1994 killing of a man

during a robbery.       Following a penalty hearing, the trial court sentenced

Appellant to a term of life imprisonment without the possibility of parole. On

June 22, 1999, this Court affirmed the judgment of sentence.             (See
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S32042-16


Commonwealth v. Hines, No. 1942 Philadelphia 1998 (Pa. Super. filed

June 22, 1999) (unpublished memorandum)). Appellant did not seek leave

to appeal to the Pennsylvania Supreme Court.

       Subsequently, Appellant has filed three PCRA petitions.         The PCRA

court dismissed each petition. Appellant did not appeal from the dismissal of

the first petition, but this Court affirmed the dismissals of the second and

third petitions on appeal.

       On May 29, 2015, Appellant filed the instant, pro se, fourth PCRA

petition.   On June 8, 2015, the PCRA court filed a Rule 907 notice of its

intention to dismiss Appellant’s PCRA petition. See Pa.R.Crim.P. 907(1). On

June 24, 2015, Appellant filed a response. On July 14, 2015, the PCRA court

dismissed Appellant’s fourth PCRA petition as untimely.          Appellant timely

appealed.1

       Appellant raises two questions for this Court’s review:

       1.     Did the [PCRA] court commit error in ruling the pro se
       petition not timely filed?

       2.     Is Appellant entitled to an evidentiary hearing in order to
       prove his pro se claims relative to the [PCRA] court’s proper
       jurisdiction (timeliness) and relative to the merits of the pro se
       claims?

(Appellant’s Brief, at 2).
____________________________________________


1
 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 PCRA court filed an
opinion on August 31, 2015. See Pa.R.A.P. 1925(a).




                                           -2-
J-S32042-16


        Our standard of review for an order denying PCRA relief is well-settled:

              This Court’s standard of review regarding a PCRA court’s
        order is whether the determination of the PCRA court is
        supported by the evidence of record and is free of legal error.
        Great deference is granted to the findings of the PCRA court, and
        these findings will not be disturbed unless they have no support
        in the certified record.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        Here, Appellant filed his fourth PCRA petition on May 29, 2015. The

PCRA provides that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final[.]”             42 Pa.C.S.A. § 9545(b)(1).       Appellant’s

judgment of sentence became final on July 22, 1999, thirty days after this

Court affirmed the judgment of sentence and Appellant did not seek leave to

appeal to the Pennsylvania Supreme Court.              See Pa.R.A.P. 1113(a); 42

Pa.C.S.A. § 9545(b)(3).        Therefore, Appellant had one year, until July 24,

2000,2 to file a timely PCRA petition.           Because Appellant did not file his

current petition until May 29, 2015, the petition is facially untimely. Thus,

he must plead and prove that he falls under one of the exceptions at Section

9545(b) of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1).
____________________________________________


2
    July 22, 2000 was a Saturday.



                                           -3-
J-S32042-16


      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

            (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. at §§ 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

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

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008). Here, Appellant alleges that

his petition is timely under sections 9545(b)(1)(i) and (ii). (See Appellant’s

Brief, at 6).

        Appellant’s arguments under both the governmental interference

exception and the newly-discovered facts exception are related. Appellant

claims that, at the time of trial, he waived his right to a jury trial based upon

defense counsel’s advice that, if he did so, he would receive life with the

                                      -4-
J-S32042-16


possibility of parole. (See id.). Appellant maintains that he was unaware

that the trial court had sentenced him to life without the possibility of parole

until May 2015, after he asked prison officials about his parole status. (See

id. at 8).

       Appellant claims that trial counsel’s ineffective assistance constituted

governmental interference.3         (See Appellant’s Brief, at 7).   To plead and

prove the governmental interference exception codified at 42 Pa.C.S.A. §

9545(b)(1)(i), Appellant must show that “the failure to raise the claim

previously was the result of interference by government officials[.]” 42

Pa.C.S.A. § 9545(b)(1)(i) (emphasis added). However, the PCRA specifically

excludes defense counsel from the definition of “government officials.” See

42 Pa.C.S.A. § 9545(b)(4); see also Commonwealth v. Abu-Jamal, 833

A.2d 719, 733 (Pa. 2003), cert. denied, 541 U.S. 1048 (2004) (finding claim

that prior counsel was ineffective did not satisfy governmental interference

exception). Thus, this claim must fail.

       Appellant also seeks to invoke the newly-discovered facts exception

codified at 42 Pa.C.S.A. § 9545(b)(1)(ii) and discussed in the Pennsylvania

Supreme Court’s decision in Commonwealth v. Bennett, 930 A.2d 1264
____________________________________________


3
  We note that Appellant does not present an exception to the time-bar by
claiming ineffective assistance of counsel. See Commonwealth v. Davis,
816 A.2d 1129, 1135 (Pa. Super. 2003), appeal denied, 839 A.2d 351 (Pa.
2003) (“[A]ttempts to utilize ineffective assistance of counsel claims as a
means of escaping the jurisdictional time requirements for filing a PCRA
petition have been regularly rejected by our courts.”) (citations omitted).



                                           -5-
J-S32042-16


(Pa. 2007), which held that this exception refers not to after-discovered

evidence but to facts that were previously unknown to the petitioner. See

Bennett, supra at 1270. The Court in Bennett also held, in accord with

the statutory language, that an appellant must prove that the facts upon

which the claim is predicated could not have been ascertained earlier

through the exercise of due diligence. See id. at 1272. “A petitioner must .

. . explain why his asserted facts could not have been ascertained earlier

with the exercise of due diligence.” Commonwealth v. Taylor, 933 A.2d

1035, 1041 (Pa. Super. 2007), appeal denied, 951 A.2d 1163 (Pa. 2008)

(citation omitted).

      Here, even assuming, arguendo, that Appellant was somehow unaware

of his sentence until 2015, he has not shown that he exercised due

diligence.   The trial court sentenced Appellant in 1998; the record clearly

demonstrates that the trial court sentenced him to life without the possibility

of parole. Thus, the information regarding his sentence was readily available

beginning in June 1998 had Appellant requested it. Appellant has provided

no explanation as to why he waited until May 2015, nearly seventeen years

later to inquire about his sentence.    Accordingly, Appellant has failed to

show that he complied with the due diligence requirement of 42 Pa.C.S.A. §

9545(b)(1)(ii). See Taylor, supra at 1041.

      Thus, because the record demonstrates that Appellant’s fourth PCRA

petition is untimely with none of the statutory exceptions to the time bar


                                     -6-
J-S32042-16


proven, we affirm the order of the trial court dismissing Appellant’s PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




                                  -7-
