Com. v. Kauffman, T. ( 2014 )


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  • J-S79011-14
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                             IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    TIMOTHY B. KAUFFMAN,
    Appellant                          No. 858 EDA 2014
    Appeal from the PCRA Order entered February 28, 2014,
    in the Court of Common Pleas of Chester County,
    Criminal Division, at No(s): CP-15-CR-0002040-2007
    BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
    MEMORANDUM BY ALLEN, J.:                                  FILED DECEMBER 05, 2014
    Timothy B. Kauffman (“Appellant”) appeals pro se from the order
    denying his untimely petition for post-conviction relief filed pursuant to the
    Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
    The pertinent facts and procedural history are as follows: On January
    3, 2008, Appellant entered a negotiated plea to two counts of involuntary
    deviate sexual intercourse and six counts of corrupting the morals of minors.
    On July 15, 2008, the trial court sentenced him in accordance to the plea
    agreement     to   an        aggregate    sentence   of    ten    to   twenty   years   of
    imprisonment, followed by a five-year probationary term. Appellant did not
    file a direct appeal to this Court.
    *Retired Senior Judge assigned to the Superior Court.
    J-S79011-14
    On July 13, 2009, Appellant filed a pro se PCRA petition. On July 15,
    2009, the PCRA court appointed counsel.              On September 15, 2009, PCRA
    counsel filed a “no-merit” letter and petition to withdraw 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
    November 2, 2009, the PCRA court filed Pa.R.Crim.P. 907 notice of intent to
    dismiss Appellant’s PCRA petition without a hearing. Appellant filed a timely
    response.    By order of court entered December 15, 2009, the PCRA court
    dismissed Appellant’s PCRA petition and permitted PCRA counsel to
    withdraw.     Although Appellant filed an appeal to this Court, we later
    dismissed it for failure to file a brief.
    On January 23, 2014, Appellant filed the pro se PCRA at issue.                     On
    February 7, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to
    dismiss Appellant’s petition as untimely. Appellant filed a timely response.
    By order entered February 28, 2014, the PCRA court dismissed Appellant’s
    second PCRA petition. This timely appeal followed. Both Appellant and the
    PCRA court have complied with Pa.R.A.P. 1925.
    This Court’s standard of review regarding an order dismissing a
    petition under the PCRA is whether the determination of the PCRA court is
    supported    by   the    evidence    of     record   and   is    free   of   legal    error.
    Commonwealth v. Halley, 
    870 A.2d 795
    , 799 n.2 (Pa. 2005). The PCRA
    court’s findings will not be disturbed unless there is no support for the
    findings in the certified record. Commonwealth v. Carr, 
    768 A.2d 1164
    ,
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    1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a
    hearing on the petition if the PCRA court determines that the petitioner’s
    claim is patently frivolous and is without a trace of support in either the
    record or from other evidence. Commonwealth v. Jordan, 
    772 A.2d 1011
    (Pa. Super. 2001).
    Before addressing the issues Appellant presents on appeal, we must
    first consider whether the PCRA court properly determined that Appellant’s
    petition was untimely.       The timeliness of a post-conviction petition is
    jurisdictional.   Commonwealth v. Albrecht, 
    994 A.2d 1091
    , 1093 (Pa.
    2010) (citation omitted). Thus, if a petition is untimely, neither an appellate
    court nor the PCRA court has jurisdiction over the petition.             
    Id. “Without jurisdiction,
    we simply do not have the legal authority to address the
    substantive claims” raised in an untimely petition. 
    Id. 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. Commonwealth v. Gamboa-
    Taylor, 
    753 A.2d 780
    , 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
    these exceptions, the petitioner must plead and prove that: “(1) there has
    been interference by government officials in the presentation of the claim; or
    (2)   there   exists   after-discovered    facts   or   evidence;   or    (3)    a   new
    constitutional right has been recognized.” Commonwealth v. Fowler, 
    930 A.2d 586
    , 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition
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    invoking one of these statutory exceptions must “be filed within sixty days of
    the date the claim first could have been presented.” 
    Gamboa-Taylor, 753 A.2d at 783
    . See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
    the time restrictions of the PCRA must be pled in the petition, and may not
    be raised for the first time on appeal.     Commonwealth v. Burton, 
    936 A.2d 521
    , 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
    raised before the lower court are waived and cannot be raised for the first
    time on appeal.”).
    Because Appellant did not file a direct appeal to this Court following
    the imposition of his sentence, his judgment of sentence became final on
    August 14, 2008, thirty days after the time for filing a direct appeal to this
    Court had expired. 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to
    file his petition by August 14, 2009, in order for it to be timely. As Appellant
    filed the instant petition on January 23, 2014, it is untimely unless he has
    satisfied his burden of pleading and proving that one of the enumerated
    exceptions applies. See Commonwealth v. Beasley, 
    741 A.2d 1258
    , 1261
    (Pa. 1999).
    Appellant has failed to plead and prove any exception to the PCRA’s
    time bar. Indeed, Appellant does not even acknowledge the untimeliness of
    his latest PCRA petition in his appellate brief.   Although he argued certain
    timeliness exceptions in his petition and his Pa.R.A.P. 1925(b) statement, he
    does not challenge the PCRA court’s treatment of them in its Pa.R.A.P.
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    J-S79011-14
    1925(a) opinion. Thus, the PCRA court correctly determined that it lacked
    jurisdiction to consider Appellant’s PCRA petition.   We therefore affirm the
    PCRA court’s order denying Appellant post-conviction relief.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/5/2014
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