NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. KAREEM GEORGE, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 465 MDA 2013 Appeal from the PCRA Order Entered February 7, 2013, In the Court of Common Pleas of Dauphin County, Criminal Division, at No. CP-22-CR BEFORE DONOHUE, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY SHOGAN, J. FILED JANUARY 23, 2014 Appellant, Kareem George, appeals pro se from the order entered on February 7, 2013, denying as untimely his second petition for collateral relief filed pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A We affirm. In a memorandum accompanying its notice of intent to dismiss Appellant s serial PCRA petition, the PCRA Court set forth the relevant facts and procedural history of this matter as follows On August 27, 2007, [Appellant] pled guilty pursuant to a negotiated plea agreement to the charges of murder in the third degree criminal homicide, three counts of recklessly endangering another person, flight to avoid apprehension, person not to possess a firearm, and carrying a firearm without a license. (N.T. p. 14). The court imposed a sentence on Count 1, murder in the third degree, of not less than fifteen (15) years nor more than thirty (30) years in a state correctional institution. On

2 Counts 2, 3, and 4, recklessly endangering another person, the court imposed a sentence [of] not less than one (1) year, nor more than two (2) years in a state correctional institution for each count. The court ordered these to run concurrently with each other and concurrently with Count 1. (N.T. pp. 25, 27-28). At Count 5, flight to avoid apprehension charge, the court imposed a sentence of not less than five (5) nor more than ten (10) years in a state correctional institute with this sentence to run concurrently with the previous sentences. At Count 6, a person not to possession a firearm charge, [Appellant] received a sentence of not less than five (5) years nor more than ten (10) years in a state correctional institute to run concurrently. At count 7, carrying a firearm without a license, the court imposed a sentenced of not less than two (2) years nor more than five (5) years imprisonment, to run concurrently with all previous charges. (N.T. p. 28). On August 21, 2008, [Appellant] filed a pro se petition under the Post Conviction Relief Act (PCRA), 42 Pa. C.S.A et seq. [Appellant] alleged ineffectiveness of counsel for alleged failure to pursue defenses of arguable merit, as a result of which [Appellant] contended he entered a guilty plea involuntarily. On August 28, 2008, this court issued an order directing William M. Shreve, Esq., to file a supplemental petition under the PCRA on the [Appellant s] behalf. On January 20, 2009, counsel filed a Motion for Evidentiary Hearing Pursuant to the Post Conviction Relief Act. On April 14, 2009, the PCRA court filed a Memorandum Opinion and Order apprising [Appellant] of the intention to dismiss the PCRA Petition, to which [Appellant] filed pro se objections. The PCRA court dismissed the PCRA Petition by Order filed October 22, [Appellant] sought the right to proceed pro se. The court conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). On December 18, 2009, we issued an Order which allowed PCRA counsel to withdraw and [Appellant] to proceed pro se. The PCRA court further granted [Appellant] the right to appeal nunc pro tunc from the October 22, 2009 Order dismissing the PCRA Petition. -2-

3 By Memorandum Opinion and Order filed October 18, 2010, the Superior Court affirmed the dismissal of [Appellant s] PCRA Petition. [Appellant] filed the instant claims for relief more than 2 years later, on December 24, PCRA Court Notice of Intent to Dismiss, 1/4/13, at 1-2. In an order entered on February 7, 2013, the PCRA court dismissed Appellant s untimely PCRA petition, and Appellant filed the instant appeal. On appeal, Appellant purports to raise ten issues for this Court s consideration 1. Whether Appellant satisfied the requirements for filing a second or subsequent PCRA Petition? 2. Whether Appellant alleged and proved that the facts upon which his claims were predicated were unknown to him and could not have been ascertained by the exercise of due diligence? 3. Whether the PCRA Court committed a legal error by treating Appellant s Motion for Modification of Sentence Nunc Pro Tunc and Motion for Recusal as if they were subsumed by the Post Conviction Relied [sic] Act? 4. Whether [Appellant] has a right under Article I, Sections 11, 14, and 20 to seek redress for violation of his rights? 5. Whether the PCRA Court committed a legal error by failing to comply with Pennsylvania Rule of Criminal Procedure 905? 6. Whether the PCRA Court abused its discretion by not ruling on the merits of Motion for Recusal before addressing the merits of the case? 7. Whether Appellant is entitled to have his sentence modified? -3-

4 8. Whether Appellant s guilty plea was knowingly and voluntarily entered, with a full understanding of the consequences? 9. Whether initial-review PCRA Counsel provided ineffective assistance of counsel? 10. Whether Appellant s PCRA claims were previously litigated? Appellant s Brief at 4-5. Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court s determination and whether the PCRA court s determination is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super. 2011), appeal denied, 42 A.3d 1059 (Pa. 2012). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Id. However, before we may reach the merits of the issues Appellant raised, we must address whether Appellant satisfied the timeliness requirements of the PCRA. The timeliness of a PCRA petition is a jurisdictional threshold and may not be disregarded in order to reach the merits of the claims raised in a PCRA petition that is untimely. Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Anyone filing a PCRA petition must file his PCRA petition within one year from the date their judgment of sentence becomes final. 42 Pa.C.S.A. 9545(b)(1). A judgment of sentence becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and -4-

5 the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review. 42 Pa.C.S.A. 9545(b)(3). However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth in 42 Pa.C.S.A. 9545(b)(1)(i), (ii), and (iii), is met. 1 A petition invoking one of these exceptions must be filed within sixty days of the date the claim could first have been presented. 42 Pa.C.S.A. 9545(b)(2). In order to be entitled to the exceptions to the PCRA s one-year filing deadline, the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001). 1 The exceptions to the timeliness requirement are (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)(1)(i), (ii), and (iii). -5-

6 Our review of the record reflects that Appellant pled guilty and was sentenced on August 27, 2007, and he did not file an appeal. Therefore, Appellant s judgment of sentence became final thirty days later on September 26, 2007, when the time in which he could have filed a direct appeal with this Court expired. See Pa.R.A.P. 903(a) (stating that an appeal must be filed within thirty days of the entry of the order from which the appeal is taken). Thus, Appellant s PCRA petition had to be filed before September 26, The PCRA petition underlying this appeal was filed on December 24, 2012, and it is untimely on its face. As previously stated, if a petitioner does not file a timely PCRA petition, his petition may nevertheless be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within sixty days of the date that the exception could be asserted. 42 Pa.C.S.A. 9545(b)(2). Our review of the record reflects that Appellant has attempted to invoke the after-discovered fact exception under 42 Pa.C.S.A. 9545(b)(1)(ii). PCRA Petition, 12/27/2012, at It appears as though Appellant is arguing that a letter he received from the Centre County Public Defender s Office and a copy of Commonwealth v. Zuber, 353 A.2d 441 (Pa. 1976), which was attached to the letter, are after-discovered facts -6-

7 that satisfy the exception to the PCRA time bar. 2 However, we conclude that Appellant is entitled to no relief. The record reveals that Appellant wrote to the Centre County Public Defender in October of PCRA Petition, 12/27/2012, at 15, Letter, 11/2/12. The Centre County Public Defender s Office received Appellant s correspondence on October 31, Letter, 11/2/12. The letter Appellant referenced in his PCRA petition, which he now asserts is an after-discovered fact, was the Public Defender s response, more aptly entitled a cover sheet, that accompanied a copy of the Zuber decision. Letter, 11/2/12. 3 What is unclear, and what Appellant fails to establish, is how this letter and the Zuber decision are remotely relevant or in what way they could be construed to satisfy one of the exceptions to the PCRA time bar. 4 To the extent that a nearly forty-year old case can be considered after discovered, other than baldy assailing the resources in the prison law 2 While Appellant was charged, pled guilty, and was sentenced in Dauphin County, he is serving his sentence at SCI Rockview, which is located in Centre County. Thus, it appears that is why Appellant was corresponding with the Centre County Public Defender s Office. 3 The full text of the letter that the Centre County Public Defender s Office sent to Appellant reads as follows Thank you for the letter I received on October 31, I believe the case you are looking for is Zuber. I have enclosed a copy of the decision for you. Good luck. Letter, 11/2/12. 4 The Zuber decision dealt with a petitioner who was granted collateral relief due to the entry of an unknowing guilty plea. Zuber, 353 A.2d at 445. Nothing in this decision aids Appellant s cause with respect to the timeliness of the underlying PCRA petition. -7-

8 library, Appellant s Brief at 12, Appellant fails to prove why he could not have discovered the Zuber case, which was published in 1976, through the exercise of due diligence. 5 Accordingly, Appellant has failed to plead and prove any exception to the time bar. See Carr, 768 A.2d at 1167 (the petitioner must plead and prove specific facts that demonstrate his claim was raised within the sixty-day time frame under section 9545(b)(2) of the PCRA). Moreover, underlying his PCRA petition, is Appellant s attempt to challenge the knowing and voluntary nature of his guilty plea. This issue was raised in his first PCRA petition, it was found meritless by the PCRA court, and we affirmed the PCRA court s findings on appeal. Commonwealth v. George, 66 MDA 2010, 15 A.3d 532 (Pa. Super. filed October 18, 2010) (unpublished memorandum). Thus, even if the PCRA petition was timely, the underlying issue was previously litigated and is not properly before this Court. 42 Pa.C.S.A. 9544(a). Consequently, because the instant PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack jurisdiction to reach the merits of the appeal. See 5 Additionally, we point out that a judicial opinion does not generally qualify as a previously unknown fact capable of satisfying an exception to the PCRA time bar under 42 Pa.C.S.A. 9545(b)(1)(ii). Commonwealth v. Watts, 23 A.3d 980, 986 (Pa. 2011). -8-

9 Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits of appeal from untimely PCRA petition). Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 1/23/