J-S26032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    CHARLES S. RENCHENSKI                           :
                                                    :
                       Appellant                    :   No. 1735 WDA 2019

              Appeal from the Order Entered September 30, 2019
     In the Court of Common Pleas of Clearfield County Criminal Division at
                       No(s): CP-17-CR-0000481-1982


BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                 FILED JUNE 30, 2020

        Charles S. Renchenski (Renchenski) appeals pro se from the order

denying his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, in the Court of Common Pleas of Clearfield

County (PCRA court). Renchenski argues that the court erred in treating his

Petition for Writ of Habeas Corpus as an untimely PCRA petition. After our

thorough review, we affirm.

                                               I.

        We take the following factual background and convoluted procedural

history from our independent review of the record, the PCRA court’s March 6,

2020 opinion, and this Court’s previously filed opinions.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           On July 12, 1984, a jury convicted Appellant of murder in
     connection with the strangulation death of Rosemarie Foley that
     occurred during August 1982, in Clearfield County. On January
     30, 1985, the trial court imposed judgment of sentence of life
     imprisonment. On March 3, 1986, we affirmed the judgment of
     sentence, and on October 14, 1986, the Supreme Court denied
     allowance of appeal. (See Commonwealth v. Renchenski, 512
     A.2d 53 (Pa. Super. filed March 3, 1986) (unpublished
     memorandum)).

           At this point, the procedural history becomes tortuous. On
     May 5, 1988, Appellant, acting pro se, filed a petition for post-
     conviction relief, which the PCRA court subsequently denied on
     May 12, 1988, without appointing counsel. On appeal, we vacated
     the order denying relief and remanded the matter to the PCRA
     court so that counsel could be appointed.

            On May 6, 1992, the PCRA court appointed [counsel, who]
     filed a petition to withdraw his representation, which the PCRA
     court granted on July 12, 1993, with Appellant’s consent. New
     counsel was not appointed, and the PCRA court did not address
     Appellant’s pending PCRA petition.

           No further entries were listed on the docket until June 2,
     2003, when more than fourteen years after the case was
     remanded to the PCRA court, Appellant filed a pro se “Extension
     of Post–Conviction Relief Petition,” seeking to amend the yet
     unresolved PCRA petition to include an after-discovered evidence
     claim. By order dated August 11, 2003, and filed January 7, 2004,
     the PCRA court summarily denied Appellant’s “extension” as an
     untimely filed second post-conviction petition. On January 28,
     2004, Appellant filed a timely notice of appeal, pro se. However,
     employing the incorrect date to compute the appeal period, we
     erroneously quashed the appeal as being untimely filed. On
     January 25, 2005, the Supreme Court vacated our per curiam
     order and remanded the matter to this Court for disposition. (See
     Commonwealth v. Renchenski, 866 A.2d 368 (Pa. 2005)).

(Renchenski v. Commonwealth, No. 332 WDA 2004, unpublished

memorandum at *1–3, 909 A.2d 898 (Pa. Super. filed August 8, 2006)).




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        Eventually, a panel of this Court found that the PCRA court erred in

treating the 2003 filing as a second petition and, instead, should have treated

it as an amendment to his unresolved, timely 1988 petition. Therefore, we

remanded to the PCRA court to address the original petition.

        On remand, although the court appointed new counsel, it eventually

allowed him to withdraw because Renchenski retained a private attorney who

filed an amended petition on his behalf.         In response, the Commonwealth

moved to dismiss the petition under Section 9543(b),1 arguing that it was

prejudiced in its ability to retry Renchenski where most, if not all of the

witnesses who would be called in a retrial were unavailable. After a hearing,

the PCRA court found that the Commonwealth would be severely prejudiced if

it were required to retry Renchenski and dismissed the PCRA petition.




____________________________________________


1   Section 9543(b) off the PCRA provides, in pertinent part:

        Even if the petitioner has met the requirements of subsection (a),
        the petition shall be dismissed if it appears at any time that,
        because of delay in filing the petition, the Commonwealth
        has been prejudiced either in its ability to respond to the
        petition or in its ability to re-try the petitioner. A petition
        may be dismissed due to delay in the filing by the petitioner only
        after a hearing upon a motion to dismiss. This subsection does
        not apply if the petitioner shows that the petition is based on
        grounds of which the petitioner could not have discovered by the
        exercise of reasonable diligence before the delay became
        prejudicial to the Commonwealth.

42 Pa.C.S. § 9543(b) (emphasis added).


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      Renchenski appealed the denial, arguing in pertinent part “that the PCRA

court erred in relying upon Section 9543(b), because the statute refers to a

delay in filing and here, Appellant’s PCRA petition was timely filed.”

(Commonwealth v. Renchenski, 988 A.2d 699, 702 (Pa. Super. 2010). On

January 11, 2010, the Superior Court affirmed the PCRA court. In concluding

that it did not err in dismissing Renchenski’s petition based on Section

9543(b), the Court found that Renchenski “essentially abandoned [his claim]

for several years[,]” resulting in “a situation where the Commonwealth would

be severely prejudiced were it required to retry the case.” (Id. at 703). On

September 28, 2012, our Supreme Court affirmed, holding that Section

9543(b)’s authorization to dismiss untimely PCRA petitions based on prejudice

to   the   Commonwealth     also   applies   to   amended   petitions.    (See

Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 2012)).

      Nearly seven years later, on August 30, 2019, Renchenski filed an

Application for Writ of Habeas Corpus which is the subject of this appeal. In

his Application, he argued, in pertinent part, that:

      [he] is being subjected to the deprivation of his liberty without
      effective representation of counsel and without a remedy in due
      course of law…. A remedy has been denied [him] because the
      PCRA Court and appointed PCRA counsel failed to assure that []
      Renchenski’s PCRA petition be reviewed promptly…. The []
      actions of the PCRA Court, appointed counsel, and the
      Pennsylvania Supreme [C]ourt unlawfully removed [his]
      remedy….

(Application for Writ of Habeas Corpus, 8/30/19, at 2-3 Paragraphs 4-5).




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        On September 3, 2019, the PCRA court provided Renchenski with notice

of its intent to dismiss the Application without a hearing because it was an

untimely second PCRA petition, with no exception pleaded and proven. See

Pa.R.Crim.P. 907(1). Renchenski filed a response to the court’s notice and,

on September 30, 2019, the court dismissed the petition. He timely appealed2

and he and the PCRA court have complied with Rule 1925. See Pa.R.A.P.

1925.

                                               II.

                                               A.

        Renchenski raises one issue for our review: whether the court erred

when it treated his Application for Writ of Habeas Corpus as an untimely

second PCRA petition.3 (See Renchenski’s Brief, at 2).

____________________________________________


2 Renchenski filed his Notice of Appeal on November 5, 2019, more than 30
days past the entry of the order appealed from. On January 23, 2020, this
Court issued a Rule to Show Cause why this appeal should not be quashed as
untimely. In his January 30, 2020 response, Renchenski maintained that he
did not receive notice of the court’s order until approximately one month after
it was signed, and that he placed his Notice of Appeal for mailing two days
after receiving the order. Because our review confirms that the PCRA court’s
September 30, 2019 order was not timestamped until October 28, 2019,
nearly a month after it was decided, we will treat Renchenki’s Notice of Appeal
as timely where it appears there was a breakdown in the processes of the
PCRA court. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.
Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008) (Although we generally
cannot extend the time for filing a notice of appeal, we may grant such relief
where there is a breakdown in the processes of the trial court).

3Our standard of review of the denial of a PCRA petition is whether the record
supports the court’s findings of fact and is free of legal error.         See



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       It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. See 42 Pa.C.S. § 9542; Commonwealth v.

Haun, 32 A.3d 697, 699 (Pa. 2011). Unless the PCRA could not provide for a

potential remedy, the PCRA statute subsumes the writ of habeas corpus. See

Commonwealth v. Fahy, 959 A.2d 312, 332 (Pa. 1999). Issues that are

cognizable under the PCRA must be raised in a timely PCRA petition and

cannot be raised in a habeas corpus petition.        See Commonwealth v.

Peterkin, 722 A.2d 638, 640 (Pa. 1998). In other words, a defendant cannot

escape the PCRA time-bar by titling his petition or motion as a petition for a

writ of habeas corpus. See id.

       Renchenski argues that his Application for Writ of Habeas Corpus was

not a PCRA petition “because it did not challenge the validity of his underlying

conviction or sentence, the truth determining process, nor the effectiveness

of his trial counsel(s).”        (Renchenski’s Brief, at 3); see 42 Pa.C.S. §

9543(a)(2).     He maintains that the Application challenged the legality and

constitutionality of his continued detention and the court’s application of 42

Pa.C.S. § 9543(b) to his first PCRA petition because that section “was deemed

ambiguous by the Pennsylvania Supreme Court, render[ing] it void as applied

to his case, resulting in him now suffering cruel and unusual punishment

without due process of law in that he was denied prompt, and in fact all state


____________________________________________


Commonwealth v. Chambers, 852 A.2d 1197, 1198 (Pa. Super. 2004),
appeal denied, 871 A.2d 188 (Pa. 2005).

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review, of his constitutional claims for relief.” (Id. at 2) (emphasis omitted);

(see id. at 3).

      However, our review reveals that the crux of Renchenski’s Application

was that, but for counsel’s ineffective assistance, his first petition would not

have been dismissed by the PCRA court, affirmed on appeal by this and the

Pennsylvania Supreme Court, and he would not be subjected to the alleged

harm he now claims, incarceration for his conviction of murder of the first

degree. (See Application, at 3). Specifically, as stated above, Renchenski

maintains that he is:

      being subjected to the deprivation of his liberty without effective
      representation of counsel and without a remedy in due course of
      law…. A remedy has been denied because the PCRA Court and
      appointed     PCRA     counsel     failed     to   assure     that
      [Renchenski’s] PCRA petition be reviewed promptly…. The
      subject actions of the PCRA Court, appointed counsel, and the
      Pennsylvania Supreme [C]ourt unlawfully removed [his]
      remedy….

(Application for Writ of Habeas Corpus, at 2-3 Paragraphs 4-5) (emphases

added).

      Based on this clear language, Renchenski’s claim that his Application did

not raise an ineffective assistance of counsel claim and that, therefore, the

PCRA court erred in treating his Application as a second PCRA petition fails.

                                      B.

      It is well-settled that “any PCRA petition, including a second or

subsequent petition, must be filed within one year of the date that the

petitioner’s judgment of sentence becomes final, unless a petitioner pleads or

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proves that one of the exceptions to the timeliness requirement enumerated

in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) is applicable.”    Commonwealth v.

McKeever, 947 A.2d 782, 785 (Pa. Super. 2008); see also 42 Pa.C.S.

9545(b)(1). This time-bar implicates the subject matter jurisdiction of the

courts. See Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999).

      Renchenski’s second PCRA petition was filed approximately 30 years

after his judgment of sentence became final and was patently untimely.

Therefore, we lack jurisdiction to consider its merits unless he pleaded and

proved one of the three enumerated timeliness exceptions. See McKeever,

supra at 785. These exceptions include: (1) the failure to raise the claim

earlier was the result of governmental interference; (2) the facts upon which

the claim is predicated were unknown to petitioner and could not be

discovered through due diligence; (3) a constitutional right recognized by the

United States or Pennsylvania Supreme Court after the time for filing a timely

petition that has been held by that Court to apply retroactively.     See 42

Pa.C.S. § 9545(b)(1).

      Renchenski has failed to plead and prove any timeliness exception.

Moreover, even were we to liberally construe his argument about counsel, the

PCRA court and the Pennsylvania Supreme Court as an attempt to claim the

benefit of the governmental interference exception, this would fail. Not only

can this argument not form the basis of a valid governmental interference

claim, he failed to plead such an exception within 60 days (the applicable


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period at that time) of the date when it could have been raised, where the

Application was filed seven years after the Supreme Court’s decision of which

he now complains. See 42 Pa.C.S. §§ 9545(b)(2), (4). Therefore, Renchenski

failed to prove a timeliness exception, and the PCRA court and this Court lack

jurisdiction to review the merits of his claim.

                                       C.

      Although we lack jurisdiction to review the merits of Renchenski’s

underlying claims due to his failure to plead and prove a timeliness exception,

we briefly note Renchenski would be ineligible for relief on his arguments

surrounding Section 9543(b) because they have been either previously

litigated in the prior PCRA proceeding or waived, and he would be ineligible

for relief. See 42 Pa.C.S. §§ 9543(a)(3), 9544(a)-(b). As detailed above, in

deciding Renchenski’s appeal from the denial of his first PCRA petition, we

expressly acknowledged “the unusual circumstances in this case” before

concluding that the delay in filing Renchenski’s amended first PCRA petition

was caused by his own failure, resulting in prejudice to the Commonwealth

and the PCRA court’s proper dismissal. (See Renchenski, 988 A.2d at 703).

The Pennsylvania Supreme Court affirmed this decision, expressly holding that

Section 9543(b) applies to amended PCRA petitions. Therefore, whether the

PCRA court properly determined that Section 9543(b) could be applied to his

case has already been litigated.




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      Additionally, Renchenski’s argument that because the Supreme Court

acknowledged that Section 9543(b) is ambiguous since it does not expressly

mention amended petitions, it should not have been applied to him under the

unique circumstances of his case, and is waived where he failed to challenge

the Pennsylvania Supreme Court’s decision in an application for writ of

certiorari in the United States Supreme Court.         In fact, this argument is

disingenuous where Section 9543(b) expressly reads, in pertinent part, that a

PCRA petition “shall be dismissed if it appears at any time that, because of

delay in filing the petition, the Commonwealth has been prejudiced either in

its ability to respond to the petition or in its ability to re-try the petitioner.”

42 Pa.C.S. § 9543(b) (emphases added). For Renchenski to attempt to argue

that this failed to provide adequate notice that his petition would be dismissed

if his undue delay in filing would prejudice the Commonwealth is not legally

persuasive.

      Hence, we affirm the order of the PCRA court dismissing Renchenski’s

second PCRA petition as untimely where he has failed to meet his burden to

plead and prove a timeliness exception.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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