J-S92036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
FRANK ERIC FRANKLIN,                     :
                                         :
                 Appellant               :     No. 894 WDA 2016

                  Appeal from the PCRA Order June 6, 2016
              in the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000275-2000

BEFORE:    SHOGAN, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED FEBRUARY 16, 2017

     Frank Eric Franklin (Appellant) appeals from the June 6, 2016 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In 2000, Appellant was convicted and sentenced to 19 to 38 years of

imprisonment for rape, attempted rape, and other charges related to his

serial abuse of his daughters.   His direct appeal was quashed; his appeal

rights were reinstated via the PCRA; his judgment of sentence was affirmed

by this Court; and our Supreme Court denied his petition for allowance of

appeal on September 1, 2004.     Commonwealth v. Franklin, 850 A.2d 7

(Pa. Super. 2004) (unpublished memorandum), appeal denied, 858 A.2d

108 (Pa. 2004). Subsequent PCRA petitions merited Appellant no relief.




*Retired Senior Judge assigned to the Superior Court.
J-S92036-16


      Appellant filed the PCRA petition that gave rise to the instant appeal

on May 5, 2016. On May 18, 2016, the PCRA court filed a notice of intent to

dismiss Appellant’s petition as untimely filed. After considering Appellant’s

response to the notice, the PCRA court dismissed Appellant’s petition by

order of June 6, 2016. Appellant timely filed a notice of appeal, and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.               We thus

consider whether the PCRA court erred in dismissing Appellant’s petition.

      The   timeliness   of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

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

of sentence is final unless the petition alleges, and the petitioner proves,

that an exception to the time for filing the petition is met, and that the claim

was raised within 60 days of the date on which it became available.             42

Pa.C.S. § 9545(b).

      Because Appellant’s judgment of sentence became final in 2004, it is

facially untimely. However, in his PCRA petition, Appellant alleged that he

could prove the following timeliness exception: “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[.]” 42 Pa.C.S. § 9545(b)(1)(ii).

Specifically, he alleged that he did not know he had an illegal sentence until




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he did legal research at SCI-Laurel Highlands with the assistance of jailhouse

paralegals.1 PCRA Petition, 5/5/2016 at 3.2

      Appellant’s claim does not merit relief. He indicates in his brief to this

Court that he lacks formal education and he “spent many hours reading

about different cases, but never really understood how any of it could apply

to his case.” Appellant’s Brief at 8. He asserts that his diligence is proved

because, “even though it took over a year,” he discovered the fact that his

sentence was illegal when his formally-trained counsel had been unable to

do so. Id.

             The timeliness exception set forth in Section 9545(b)(1)(ii)
      requires a petitioner to demonstrate he did not know the facts
      upon which he based his petition and could not have learned
      those facts earlier by the exercise of due diligence.         Due
      diligence demands that the petitioner take reasonable steps to
      protect his own interests. A petitioner must explain why he
      could not have obtained the new fact(s) earlier with the exercise
      of due diligence. This rule is strictly enforced.

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010)

(citations omitted).

1
  In his response to the PCRA court’s notice of intent to dismiss, Appellant
indicated that he discovered that he had an illegal sentence in “April 2016.”
Response to 907 Notice, 5/31/2016.
2
  He also alleged in his PCRA petition that “the failure to raise the claim
previously was the result of interference by government officials,” 42 Pa.C.S.
§ 9545(b)(1)(ii), contending that sentencing counsel “failed to object to
multiple charges instead of having them merged, at the time of being
sentenced,” resulting in an illegal sentence. Appellant does not present this
government-interference claim on appeal, and even if he did, it is well-
settled that defense counsel is not a government official for purposes of this
exception. See, e.g., Commonwealth v. Abu-Jamal, 833 A.2d 719, 725
(Pa. 2003).

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      Ignoring for the moment that Appellant did not allege the facts relating

to his diligence in his PCRA petition or in his response to the PCRA court’s

notice of intent to dismiss, Appellant even now fails to explain why he could

not have begun his research at an earlier time after his sentence became

final. Waiting more than a decade, and after the filing of numerous PCRA

petitions, to investigate a merger claim that could have been raised at any

time after he was sentenced in 2000 does not constitute taking reasonable

steps to protect his interests. Furthermore, the cases he “discovered” that

led to his conclusion that his sentence is illegal are not “facts” for purposes

of the PCRA’s timeliness exception.    Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa. Super. 2013) (“Our Courts have expressly rejected the notion

that judicial decisions can be considered newly-discovered facts which would

invoke the protections afforded by section 9545(b)(1)(ii).”). Thus, Appellant

has failed to meet his burden under the newly-discovered facts exception.

      Finally, in the supplement to his brief in this Court, Appellant contends

that his challenge to the legality of his sentence can never be waived and

may be raised by an appellate court sua sponte. Appellant’s Supplemental

Brief at unnumbered 2. While Appellant is correct that such claims generally

cannot be waived, it is also true that no court can entertain the claim if it

lacks jurisdiction to do so based upon the untimeliness of the petition.

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f a PCRA

petition is untimely, neither this Court nor the [PCRA] court has jurisdiction


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over the petition.      Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” (citation and internal quotation

marks omitted)); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“Although legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA’s time limits or one of the exceptions

thereto.”).

      Because Appellant’s petition was untimely filed, and he failed to

establish a timeliness exception, the PCRA properly dismissed it based upon

lack of jurisdiction.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/16/2017




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