J-S08040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
RONNIE AUSTIN,                             :
                                           :
                   Appellant               :       Nos. 1262, 1263 WDA 2015

            Appeal from the PCRA Order entered on August 6, 2015
               in the Court of Common Pleas of Fayette County,
              Criminal Division, No(s): CP-26-CR-0000213-1997;
                           CP-26-CR-0000214-1997

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED APRIL 08, 2016

        Ronnie Austin (“Austin”), pro se, appeals from the Order dismissing his

sixth Petition for Relief filed pursuant to the Post Conviction Relief Act

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

        On November 19, 1997, a jury convicted Austin of criminal homicide,

retaliation against a witness or victim, and conspiracy.1 Thereafter, the trial

court sentenced Austin to life in prison.      On March 23, 1999, this Court

affirmed Austin’s judgment of sentence and, on September 8, 1999, the

Pennsylvania Supreme Court denied allowance of appeal. Commonwealth

v. Austin, 737 A.2d 1268 (Pa. Super. 1999) (unpublished memorandum),

appeal denied, 743 A.2d 913 (Pa. 1999). Since that time, Austin has filed

numerous PCRA Petitions. Ultimately, all were denied.




1
    18 Pa.C.S.A. §§ 2501, 4953, 903.
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      Relevant to the instant appeal, on June 17, 2013, Austin filed his sixth

PCRA Petition.   The PCRA court appointed counsel, who filed a no-merit

letter, and Motion to withdraw as counsel pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).        On October 31, 2014, the PCRA

court entered an Order granting counsel’s Motion to withdraw from

representation. However, the PCRA court took no further action on Austin’s

pending PCRA Petition.

      Austin appealed the Order granting counsel’s Motion to withdraw,

which this Court quashed as interlocutory. Commonwealth v. Austin, 122

A.3d 444 (Pa. Super. 2015) (unpublished memorandum).            Thereafter, the

PCRA court issued Notice of its intent to dismiss Austin’s sixth PCRA Petition

without a hearing, to which Austin filed a Response and Objection.           On

August 6, 2015, the PCRA court filed its Order dismissing Austin’s PCRA

Petition as untimely filed. Austin, pro se, filed a timely Notice of Appeal, and

a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal.

      Austin now presents the following claims for our review:

      (1) Did the [PCRA] court err in dismissing [Austin’s] sixth [PCRA]
      Petition as untimely?

      (2) Did the [trial court] acquire subject matter jurisdiction for
      the cases of CP Nos. 213 and 214 of 1997?

      (3) Did [the District Attorney] commit fraud upon the court?



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      (4) Did [the PCRA] court err in dismissing [Austin’s] sixth
      Petition without other proceedings?

Brief for Appellant at 4.

      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court's determination is supported by the record and free of legal error.”

Commonwealth v. Montalvo, 114 A.3d 401, 409 (Pa. 2015) (citation and

internal quotation marks omitted).

      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition.   42 Pa.C.S.A. § 9545(b)(1).

Under these exceptions, the petitioner must plead and prove that

      (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.A. § 9545(b)(2). A PCRA petition invoking one of these statutory

exceptions must be filed within sixty days of the date the claim first could

have been presented. 42 Pa.C.S.A. § 9545(b)(2).



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      Austin first claims that the PCRA court improperly dismissed his

Petition as untimely filed. Brief for Appellant at 4. Austin asserts that, at

the time of his arrest, Pennsylvania State Trooper James Custer (“Trooper

Custer”) entered the residence, but did not present a warrant. Id. Austin

claims that he discovered the absence of the warrant in 2013, when, after

requesting copies of the warrants and affidavits for his cases (Nos. 213 and

214 of 1997), the clerk sent only the warrant for “Retaliation Against a

Witness or Victim,” and not the warrant for homicide.       Id.   Austin argues

that because of this, he was never arrested for, or charged with, criminal

homicide and, accordingly, his constitutional right of due process has been

violated. Id. at 8.

      In his second, related claim, Austin argues that “without a valid

complaint or arrest warrant[,] any judgment or sentence is void ab initio.”

Id. at 10 (internal quotation marks omitted). Austin asserts that he has the

right to challenge the validity and legality of an illegal sentence, and that the

lack of subject matter jurisdiction “also makes this sixth PCRA [P]etition

timely ….” . Id. at 11.

      Our review discloses that Austin has failed to demonstrate that “the

facts upon which [his] claim is predicated were unknown to [him] and could

not have been ascertained by the exercise of due diligence[.]”          See 42

Pa.C.S.A. § 9545(b)(2). Austin admits that he was not shown any warrant

at the time of the 1997 search and arrest. Brief for Appellant at 7. Austin



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states that he only discovered the absence of the homicide warrant in 2013,

when, in response to his request, the Clerk of Courts failed to send a

homicide arrest warrant.      Id.   Austin’s failure to request copies of the

warrants for his case, for such an extended period of time, cannot suffice as

due diligence. Because Austin failed to establish an exception to the PCRA’s

timeliness requirement, the PCRA properly denied relief on his first and

second claims.

     In his third claim, Austin argues that the assistant district attorney

committed “a fraud upon the court.” Brief for Appellant at 11. In support,

Austin once again relies upon the alleged lack of a warrant for his homicide

case. Id.

     Our review discloses that Austin failed to demonstrate that the

prosecutor’s alleged actions were unknown to him, and could not have been

ascertained   by   the   exercise   of    due   diligence.   See   42   Pa.C.S.A.

§ 9545(b)(2). Because Austin failed to establish a statutory exception to the

PCRA’s timeliness requirement, the PCRA properly dismissed his Petition

without an evidentiary hearing.2         Accordingly, we affirm the Order of the

PCRA court.

     Order affirmed.




2
  Accordingly, we need not address Austin’s fourth claim, which challenged
the denial of his Petition without an evidentiary hearing.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/8/2016




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