J-S43043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID ALLEN HELSEL                         :
                                               :
                       Appellant               :   No. 315 WDA 2018

                 Appeal from the PCRA Order February 9, 2018
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0001679-2009


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 14, 2018

        Appellant David Allen Helsel appeals pro se from the order dismissing

his second Post Conviction Relief Act1 (PCRA) petition as untimely. Appellant

asserts that he is entitled to PCRA relief because he was illegally sentenced to

consecutive terms of imprisonment for attempted rape of a child and

attempted rape by forcible compulsion based upon the same incident involving

a single victim. We affirm.

        This Court previously summarized the relevant background of this

matter:

        On June 19, 2009, Helsel came upon several juveniles in a
        cemetery in Altoona.    Posing as a cemetery employee, he
        informed them that there had been reports that they were
        knocking over headstones. The teens denied committing any acts
        of vandalism. After a brief physical altercation with one of the
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1   42 Pa.C.S. §§ 9541-9546.
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     males, Helsel separated the two females from the group—M.B.,
     age 12, and L.G., age 15—by telling them they had to come with
     him to the owner’s house. He led them, holding them by the
     wrists for part of the way. The girls stated they did not run when
     Helsel released his grip because they were afraid. Upon reaching
     a wooded area, Helsel drew a knife and informed the girls he
     wanted to touch them all over their bodies. Fearing he would hurt
     them, the victims negotiated with Helsel, eventually agreeing that
     he could rub his penis against each of their backsides, and then
     they would be free to go. He engaged in this behavior with L.G.
     and then with M.B. Helsel told M.B. he wanted to have sex with
     her, and the victims tried to run away. At that, Helsel grabbed
     M.B. by the hair and pulled her further into the woods. While in
     the woods, Helsel attempted to take off M.B.’s shorts and to
     spread her legs, while M.B. fought to stop him.

     L.G. ran to a nearby building that happened to be hosting a
     meeting of the Fraternal Order of Police. She informed police what
     had happened, and Patrolman Shaun McCready and Patrolman
     (now Corporal) Michael Sapienza went in search of M.B. and
     Helsel. Patrolman McCready heard a girl screaming, and upon
     reaching a cut-in that led into the woods, he saw M.B. sitting with
     her back facing him and Helsel standing directly in front of her.
     He drew his weapon and told Helsel to get on the ground, at which
     Helsel fled. As the police ran after him, M.B. shouted that Helsel
     raped her. According to Corporal Sapienza, who came to the
     clearing immediately after Patrolman McCready, M.B. was naked
     from the waist down.

     Multiple officers responded to assist in the search for Helsel.
     Corporal Sapienza apprehended him near the wood line at 15th
     Street and Bell Avenue; Helsel was found hiding under a pile of
     leaves, dirt and branches. A search incident to arrest revealed a
     knife in Helsel’s pocket.

     At the police station, the police gave Helsel his Miranda warnings,
     which Helsel waived and provided a statement wherein he
     reportedly admitted, in a recorded statement, that he attempted
     to have sex with M.B. in the woods. Fingernail scrapings were
     taken from M.B. that matched Helsel’s DNA profile.

     Helsel was charged with 37 counts of various crimes. A three-day
     jury trial ensued, and Helsel testified in his own defense. He
     denied all of the allegations against him, instead stating that he
     happened upon the group of teens hanging out in the cemetery


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        and joined them. He indicated that there was discussion about
        purchasing marijuana by the group, and that he accompanied M.B.
        and L.G. to make the purchase. He became separated from the
        girls, and upon hearing police sirens, he walked over to see what
        was going on, at which point he was arrested. According to Helsel,
        the police struck him several times and intimidated him, which
        caused him to provide the aforementioned admission.

Commonwealth v. Helsel, 1962 WDA 2012, 2013 WL 11253727, at *1-2

(Pa. Super. filed Sept. 16, 2013).

        On January 20, 2011, a jury convicted Appellant of attempted rape by

forcible compulsion, attempted rape of a child,2 and multiple other offenses.

Because Appellant had two prior convictions of rape, the sentencing court

sentenced Appellant as a third-strike sexual offender, ordering him to be

imprisoned for life pursuant to 42 Pa.C.S. § 9718.2(a)(2). On direct appeal

to this Court, we held that Appellant should have been sentenced as a second-

strike offender, noting that “[a]lthough this is his third conviction of a crime

that requires him to register as a sexual offender resulting from three separate

criminal transactions, because he served a single prison term for the first two

convictions,    he    only    had    one       opportunity   to   reform,   not   two.”

Commonwealth v. Helsel, 53 A.3d 906, 917 (Pa. Super. 2012).

        On remand, the trial court sentenced Appellant to an aggregate

sentence of 73 to 146 years of incarceration. Appellant took a direct appeal

of his re-sentencing.        Appellant asserted that his overall sentence was

excessive and that the sentencing court imposed an illegal sentence when it

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2   See 18 Pa.C.S. §§ 901, 3121(a)(1), (c).


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ordered him to serve consecutive terms of twenty-five to fifty years of

incarceration for each of attempted rape of a child and attempted rape by

forcible compulsion. Helsel, 2013 WL 11253727, at *4.

       This Court affirmed Appellant’s re-sentencing, holding that the sentence

was legal because “rape by forcible compulsion and rape of a child each

includes an additional element not included in the other.” Id. at *6. As to

the alleged excessiveness of the sentence, this Court determined that the

sentencing court imposed individualized sentences for Appellant’s convictions

and Appellant demonstrated no abuse of discretion. Id. at *7. The Supreme

Court of Pennsylvania denied Appellant’s petition for allowance of appeal on

March 12, 2014. Commonwealth v. Helsel, 87 A.3d 318 (Pa. 2014).

       Appellant filed a pro se first PCRA petition, docketed on May 7, 2015,

and the PCRA court appointed counsel. Thereafter, on November 24, 2015,

at Appellant’s request, counsel withdrew Appellant’s first PCRA petition. See

Order, 12/1/15.

       Appellant filed a “Motion for Modification of Sentence,” which was

docketed on September 11, 2017. Appellant also filed the instant pro se PCRA

petition, his second, which was docketed on December 18, 2017.3 By order
____________________________________________


3 We note that although Appellant withdrew his first PCRA petition, the petition
giving rise to this appeal is nevertheless a second PCRA petition. See
Commonwealth v. Rienzi, 827 A.2d 369 (Pa. 2003) (indicating that when a
first PCRA petition has been withdrawn, a subsequent petition does not relate
back to the first petition and is considered to be a second PCRA petition).




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dated January 3, 2018, the PCRA court allowed Appellant thirty days to refile

his motion to modify sentence, since it was based on Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017),4 but lacked specificity. Appellant did not

refile his motion to modify sentence.

       On January 5, 2018, the PCRA court issued a notice of its intent to

dismiss Appellant’s second PCRA petition pursuant to Pa.R.Crim.P. 907.

Appellant filed a response, docketed January 29, 2018, in which Appellant

asked for “leeway” in allowing his untimely second PCRA petition to proceed.

Appellant’s Obj. to Proposed Dismissal, 1/29/18, at 1 (unpaginated).          The

PCRA court found no genuine issues of material fact and dismissed Appellant’s

petition on February 9, 2018.
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       Additionally, we note that counsel was not formally appointed for the
instant second PCRA petition. Appellant has attached a letter to his appellate
brief from counsel for his first petition indicating that the attorney believed he
was representing Appellant regarding the instant second petition. However,
the PCRA court did not enter an order appointing counsel, and the PCRA court
and Appellant proceeded as if Appellant were pro se, including Appellant’s
timely filing of his notice of appeal and concise statement of errors complained
of on appeal. Moreover, Appellant does not raise an issue on appeal regarding
his lack of representation. Since this matter involves a second PCRA petition,
Appellant is not automatically entitled to counsel. See Commonwealth v.
Austin, 721 A.2d 375, 379 n.4 (Pa. Super. 1998). Accordingly, we find no
error in permitting Appellant to proceed pro se in this matter.

4  Muniz, decided on July 19, 2017, held that retroactive application of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§ 9799.10-9799.41, violates the federal and state ex post facto
clauses. Muniz, 164 A.3d at 1193. SORNA took effect upon the expiration of
Megan’s Law III, its predecessor statute, on December 20, 2012. SORNA was
amended in response to Muniz. See 2018, Feb. 21, P.L. 27, No. 10 (Act 10)
(codified, in part, in 42 Pa.C.S. §§ 9799.51-9799.75).


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      Appellant filed a timely notice of appeal and court-ordered concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

The trial court complied with Pa.R.A.P. 1925(a).

      Appellant raises three questions for our review, which we have

reordered as follows:

      1. Was Appellant properly sentenced on the charges of criminal
         attempt of rape [of a child] and criminal attempt of rape by
         forcible compulsion?

      2. Did [the] trial court sentence Appellant twice for substantially
         [] the same offense on the attempt charges?

      3. Did [the] trial court exercise proper discretion in sentencing
         Appellant to 7[3] – 1[46] years?

Appellant’s Brief at 5.

      Our standard of review of the denial of a PCRA petition is well-settled.

We “review[] the PCRA court’s findings of fact to determine whether they are

supported by the record, and review[] its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (citation omitted).

      Generally, a petition for PCRA relief, including a second or subsequent

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

becomes final. See 42 Pa.C.S. § 9545(b)(1). Exceptions to the timeliness

requirement exist, however, as set forth at 42 Pa.C.S. § 9545(b).           The

timeliness requirements of the PCRA are jurisdictional in nature, and, thus, a

PCRA court cannot hear untimely petitions. Commonwealth v. Robinson,

837 A.2d 1157, 1161 (Pa. 2003). The petitioner bears the burden of proving

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that   an   untimely   petition   fits   into   one   of   the   three   exceptions.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012). Further, “[a]lthough

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.”

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

       The three statutory exceptions for a facially untimely petition under the

PCRA consist of the following:

       (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness

exception must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       Instantly, Appellant’s petition is untimely on its face, and Appellant does

not attempt to invoke any timeliness exception that would provide this Court

with jurisdiction to consider the merits of his claims, including his legality of

sentence issues. See Robinson, 837 A.2d at 1161; Fahy, 737 A.2d at 223.




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Thus, the PCRA court properly dismissed Appellant’s claims without a hearing.5

See Spotz, 84 A.3d at 311.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




____________________________________________


5 Even if Appellant had properly pled a timeliness exception, his issues raised
in this appeal were previously litigated. See 42 Pa.C.S. § 9545(a)(3)
(providing that to be eligible for PCRA relief, a petitioner must plead and prove
that, inter alia, “the allegation of error has not been previously litigated”); see
also Helsel, 2013 WL 11253727.

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