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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT KERNS, :
:
Appellant : No. 618 MDA 2014
Appeal from the PCRA Order entered on April 1, 2014
in the Court of Common Pleas of Berks County,
Criminal Division, No. CP-06-CR-0000371-2001
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 19, 2014
Scott Kerns (“Kerns”) appeals, pro se, from the Order dismissing his
tenth Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).
See 42 Pa.C.S.A. § 9541-9546. We affirm.
In May 2001, Kerns pled guilty to one count of Involuntary Deviate
Sexual Intercourse.1 After a Megan’s Law hearing,2 Kerns was found to be a
sexually violent predator, and the trial court sentenced him to 7½ to 20
years in prison. This Court affirmed Kerns’s judgment of sentence. See
Commonwealth v. Kerns, 844 A.2d 1282 (Pa. Super. 2003) (unpublished
memorandum).
1
18 Pa.C.S.A. § 3123.
2
42 Pa.C.S.A. § 9795.4(e) at the time of sentencing.
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Kerns filed his first PCRA Petition in February 2004. Kerns was
appointed PCRA counsel, who filed a Petition 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). The PCRA
court granted the Petition to Withdraw, and thereafter dismissed Kerns’s
Petition in May 2004. This Court affirmed the dismissal. See
Commonwealth v. Kerns, 875 A.2d 388 (Pa. Super. 2005) (unpublished
memorandum).
Kerns filed eight additional PCRA Petitions between 2007 and 2013,
each of which was dismissed as untimely. This Court affirmed each
dismissal that Kerns chose to appeal.
In December 2013, Kerns, pro se, filed the instant PCRA Petition. The
PCRA court dismissed the Petition on April 1, 2014. Kerns filed a timely
Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b)
Concise Statement of Matters Complained of on Appeal.
Under the PCRA, a petition must be filed within one year from the date
the judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence becomes final at the conclusion of direct review or at
the expiration of the period of time for seeking review. Id. § 9545(b)(3).
An appellate court cannot reach the merits of an appeal if the PCRA petition
is untimely. Commonwealth v. Fisher, 870 A.2d 864, 869 n.10 (Pa.
2005).
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Kerns’s judgment of sentence became final in January 2004. Because
Kerns did not file the instant PCRA Petition until December 2013, the Petition
is facially untimely.
However, we may consider an untimely PCRA petition if the petitioner
can plead and prove one of three exceptions set forth under 42 Pa.C.S.A.
§ 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.” Id.
§ 9545(b)(2); Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa.
2010).
Kerns claims a newly-discovered facts exception under section
9545(b)(1)(ii), arguing that by failing to answer interrogatories in a related
civil suit, his ex-wife admitted to conspiring with the police to bring criminal
charges against him. Brief for Appellant at 7-8. Kerns asserts that he filed
the instant PCRA well within 60 days of receiving judgment in the civil suit.
Id. at 8.
Here, even if Kerns properly pled the newly-discovered facts
exception, he has not demonstrated that this evidence would overcome his
admissions at his guilty plea. See Commonwealth v. Harris, 553 A.2d
428, 434 (Pa. Super. 1989) (stating that “an appellant will not be permitted
to contradict his own prior sworn statements at a guilty plea hearing.”).
Thus, the PCRA court properly dismissed Kerns’s tenth PCRA Petition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2014
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