J   -S25007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                 1   IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                               Appellee

                      v.

    EMIL M. COOPER

                               Appellant                 No. 81 MDA 2019


            Appeal from the PCRA Order entered December 20, 2018
               In the Court of Common Pleas of Lycoming County
                Criminal Division at No: CP-41-CR-0001464-2009


BEFORE:     STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED AUGUST 08, 2019

        Appellant, Emil   M.   Cooper, pro se appeals from the December 20, 2018

order of the Court of Common Pleas of Lycoming County dismissing as

untimely his petition for collateral relief under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        The factual and procedural background is not at issue. Briefly, following

a    bench trial, Appellant was found guilty of attempted criminal homicide,

aggravated assault (2 counts), simple assault (2 counts), and possession of

an instrument of crime.         See Commonwealth v. Cooper, 565 MDA 2012

(Pa. Super. filed September 19, 2012).         On appeal, we affirmed.   Id. Our
Supreme Court denied Appellant's petition for allowance of appeal on March

6, 2013.
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        Appellant filed the instant PCRA petition, his third, on November 6,

2018. The PCRA court denied it on December 20, 2018. This appeal followed.

        Appellant acknowledges that the instant petition is facially untimely.'

However, he argues that the instant petition meets "the newly -discovered

evidence" exception under Section 42 Pa.C.S.A.         §   9545(b)(1)(ii). Specifically,
Appellant argues that he did not know his limited mental competence was

relevant at his trial, appeal, and collateral review, and that he learned about

its relevancy only recently.    Accordingly, Appellant argues, all prior counsel

were ineffective for not pursuing the mental incompetence avenue. The PCRA

court, in reviewing the claim, found that it was untimely and that it did not

meet any exception to the time -bar. We agree.

        All PCRA petitions, "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). The one-year time limitation, however, can be overcome if              a

petitioner (1) alleges and proves one of the three exceptions set forth                in

Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files          a   petition raising this




' Appellant's judgment of sentence became final June 4, 2013, that is, upon
the expiration of the 90 -day period for seeking appellate review to the United
States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the
Supreme Court of the United States.



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exception within one year of the date the claim could have been presented.

42 Pa.C.S.A.      §   9545(b)(2).2

        "The PCRA's time restrictions are jurisdictional in nature. Thus,                 [i]f   a

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

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

legal authority to address the substantive claims."                     Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration                 in   original) (internal

citations and quotation marks omitted). As timeliness              is   separate and distinct

from the merits of Appellant's underlying claims, we first determine whether

this PCRA petition         is   timely filed. See Commonwealth v. Stokes, 959 A.2d

306,    310 (Pa.           2008)    (consideration    of Brady3 claim          separate from

consideration of its timeliness).           The timeliness requirements of the PCRA

petition must be met, even if the underlying claim          is a   challenge to the legality

of the sentence.           See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.

2007) ("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") (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999)).




2Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2017.

3   Brady   v.   Maryland, 373        U.S. 83 (1963).

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         At issue here         is   the newly -discovered exception. The newly -discovered

exception requires             a    petitioner to plead and prove two components: 1) the

facts upon which the claim was predicated were unknown, and (2) these

unknown facts could not have been ascertained by the exercise of due

diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).

         It   is   well -established that Appellant's discovery that all counsel were

ineffective for not pursuing his mental incompetence claim                      is   not   a   newly -

discovered "fact" that qualifies for the exception under Section 9545(b)(1)(ii).

See, e.g., Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa.

2000); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (claims of

counsel's ineffectiveness do not escape the PCRA one-year time limitation

merely because they are presented                 in   term of current's counsel discovery of

the fact); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (couching

argument in terms of ineffectiveness cannot save                  a   petition that does not fall

into exception to time -bar).

         Additionally, Appellant, in his brief, confirms that all prior counsel were

aware of his mental condition, they all told Appellant that they "would argue

this mitigating factor to the trial court, but failed to do so." Appellant's Brief

at 10.        It   is   clear, therefore, that Appellant has been aware of the alleged

ineffective assistance of counsel for             a    considerable period of time and failed

to act on it in         a   timely manner. The claim is, therefore, untimely.
         Appellant finally argues that prior counsel were ineffective for not

seeking quashal of the underlying indictment.                     All PCRA claims, including

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ineffective assistance of counsel claims, are subject to the same jurisdictional

time limitation described above. As with all PCRA claims, it         is   incumbent on

Appellant to plead and prove by         a   preponderance of the evidence that he is

entitled to relief. See, e.g., 42 Pa.C.S.A.         §   9543(a). The instant claim   is

patently untimely, and Appellant makes no effort to explain what exception,

if any, would save this otherwise untimely claim. We must therefore conclude

that the second claim     is also   untimely.

        Order affirmed.



Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 8/8/2019




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