J-S34038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
JAMES W. CRISE,                           :
                                          :
                  Appellant               :     No. 53 WDA 2018

               Appeal from the PCRA Order December 1, 2017
           in the Court of Common Pleas of Westmoreland County
           Criminal Division at No(s): CP-65-CR-0001899-2008
                                       CP-65-CR-0004502-2008

BEFORE:        BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                          FILED JULY 31, 2018

      James W. Crise (Appellant) pro se appeals from the December 1, 2017

order denying his petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. We affirm.

      We provide the following background.            In 2009, Appellant was

convicted of various crimes including involuntary deviate sexual intercourse

(IDSI). Appellant was sentenced to an aggregate term of 20 to 55 years of

imprisonment, which included a 10-year mandatory minimum sentence.

This Court denied Appellant relief on direct appeal, and his judgment of

sentence became final in 2011 after our Supreme Court denied his petition

for allowance of appeal. Commonwealth v. Crise, 24 A.3d 455 (Pa. Super.

2011) (unpublished memorandum), appeal denied, 24 A.3d 863 (Pa. 2011).

Appellant’s first three PCRA petitions resulted in no relief.


* Retired Senior Judge assigned to the Superior Court.
J-S34038-18


        Appellant filed the petition that is the subject of the instant appeal on

September 18, 2017. Therein, he claimed that he was entitled to relief due

to ineffective assistance of counsel1 and having been given an illegal

sentence.     PCRA Petition, 9/18/2017, at ¶ 4(II), 4(VI).        Appellant also

suggested that two timeliness exceptions applied to this otherwise untimely-

filed fourth PCRA petition. Id. at ¶ 5.

        The PCRA court issued an opinion and notice of its intent to dismiss

Appellant’s petition without a hearing, to which Appellant filed a response in

opposition.     On December 1, 2017, the PCRA court entered an order

dismissing Appellant’s petition as untimely filed.      Appellant timely filed a

notice of appeal, and both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

        Appellant raises two issues for our review.    Before we may consider

them, we must determine whether the PCRA court correctly held that his

petition was untimely filed, for the timeliness of a post-conviction petition is

jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280–

81 (Pa. Super. 2013) (quoting 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 over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.”).




1   Appellant does not raise this claim on appeal.

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      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).

      It is clear that Appellant’s 2017 petition is facially untimely: his

judgment of sentence became final in 2011. However, we may consider an

untimely-filed PCRA petition if Appellant explicitly pled and proved one of

three exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i-iii).      Any petition

invoking one of these exceptions “shall be filed within 60 days of the date

the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, although inarticulately stated in his brief, Appellant’s petition

arguably asserts the after-recognized and retroactively-applied constitutional

right exception found at 42 Pa.C.S. § 9545(b)(1)(iii) (providing an exception

where “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”) based on Alleyne v. United States, 570 U.S. 99

(2013). See PCRA Petition, 9/18/2017, at ¶ 5; Appellant’s Brief at 6-7. In

Alleyne, the Supreme Court of the United States “held that any fact that, by

law, increases the penalty for a crime must be treated as an element of the


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offense, submitted to a jury, rather than a judge, and found beyond a

reasonable doubt.”     Commonwealth v. Washington, 142 A.3d 810, 812

(Pa. Super. 2016), citing Alleyne, 570 U.S. at 116.              The U.S. Supreme

Court reasoned that a Sixth Amendment violation occurs where these

sentence-determinative facts are not submitted to a jury. Alleyne, 570 U.S.

at   104.        However,    our   Supreme      Court      has    held   specifically

that Alleyne does not apply retroactively to cases on collateral review.

See Washington, 142 A.3d at 820. Thus, Appellant has not satisfied this

exception.

        Next,   Appellant   attempts   to   assert   the   newly-discovered-facts

timeliness exception found at 42 Pa.C.S. § 9545(b)(1)(ii) (providing an

exception where “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”).    See PCRA Petition, 9/18/2017 at ¶ 5; Appellant’s Brief at 7.

Specifically, Appellant claims that he recently discovered that the trial judge

has a “business relationship” with a close anonymous relative of Appellant’s,

insomuch as Appellant claims the relative allegedly sold the trial judge illegal

narcotics. PCRA Petition, 9/18/2017, at ¶ 5(II); see also Appellant’s Brief

at 7.     Appellant submitted an anonymous, handwritten letter from an

unspecified relative, dated June 12, 2017, in support of his newly-discovered

facts exception claim. Appellant’s Brief at Exhibit A.

             Our Supreme Court has previously described a petitioner’s
        burden under the newly-discovered fact exception as follows.

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           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) “the facts upon which the
           claim was predicated were unknown” and 2) “could
           not have been ascertained by the exercise of due
           diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
           added).

     Commonwealth v. Bennett, [] 930 A.2d 1264, 1272 ([Pa.]
     2007). Due diligence demands that the petitioner take
     reasonable steps to protect his own interests. A petitioner must
     explain why he could not have learned the new fact(s) earlier
     with the exercise of due diligence. This rule is strictly enforced.

Commonwealth v. Medina, 92 A.3d 1210, 1216 (Pa. Super. 2014) (some

citations and quotation marks omitted).

     The PCRA court addressed Appellant’s assertion as follows:

            Notably, [Appellant] states that the [trial c]ourt “has had
     an ongoing ‘business’ relationship with a close relative of
     [Appellant,]” and “there is photographic evidence of the [trial
     court judge] purchasing several items from [Appellant’s]
     relative.” He states that “the relative will remain ‘Jane Doe’ as
     to protect her from threats that the [p]rosecution and [j]udge
     have been accused of in the past with other witnesses.”

           [Appellant] avers that this “business relationship” meets
     the newly discovered evidence exception. [Appellant], however,
     while stating that the facts were unknown to him and could not
     have been ascertained by due diligence, contradicts his own
     argument by stating in the next line that “the [trial court judge]
     was made aware of this relationship during the trial, and failed
     to recuse herself.”

            [Appellant’s] claim is spurious and without a scintilla of
     merit.    The [trial court] is not aware of any “business
     relationship” with any close relative of [Appellant], and
     [Appellant’s] previous claims regarding witness intimidation and
     threats from both the district attorney’s office and the [trial
     court] have been equally as specious. [Appellant] has also failed
     to plead how he learned of such information, whether it met the

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      60-day statutory deadline, and how it affected his trial. As noted
      by the Superior Court in [Appellant’s third PCRA petition], the
      [trial court] cannot and will not try to make his arguments for
      him in regards to meeting the statutory guidelines of the PCRA.
      Based on the information presented by [Appellant], the [trial
      court] does not have jurisdiction to entertain the merits of his
      argument.

Trial Court Opinion, 11/6/2017, at 5-6. We agree with the PCRA court that

Appellant cannot simultaneously assert that the facts were both unknown

and known to him, and thus, he fails to meet the requirements of the

exception.

      Furthermore, Appellant has not only failed to establish that the letter

from his relative contained new facts, but he also failed to satisfy the

requirements to establish due diligence in obtaining said letter. According to

Appellant, the anonymous author of this letter “sold illegal narcotics to the

[t]rial [j]udge, and during one such transaction in 2009, [she] told the

[j]udge [she is] related to [Appellant].” Appellant’s Brief at 7. Even if the

trial court were to have believed the letter, this purported fact is not new, as

Appellant avers that the trial court judge knew this fact at the time of trial.

PCRA Petition, 9/18/2017, at 2 (unnumbered). Moreover, Appellant has not

explained why he did not present this sooner.

      Because Appellant’s petition was filed untimely without exception, the

PCRA court lacked jurisdiction to consider it on the merits.               See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming




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dismissal of PCRA petition without a hearing because appellant failed to

meet burden of establishing timeliness exception).

      Therefore, the PCRA court properly dismissed the petition for lack of

jurisdiction.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2018




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