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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
CURTIS R. GOVAN
Appellant No. 148 MDA 2016
Appeal from the PCRA Order December 30, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000735-1996
CP-22-CR-0000905-1996
BEFORE: BOWES, J., PANELLA, J., JENKINS, J.
MEMORANDUM BY PANELLA J. FILED OCTOBER 13, 2016
Appellant, Curtis R. Govan, appeals pro se from the order dismissing
as untimely his fifth petition for post-conviction relief filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the relevant procedural and factual
history as follows.
Following a jury trial from August 5-9, 1996, [Govan] was
found guilty of first degree murder for the shooting of Robert
Vasquez. [Govan] was also found guilty of [a]ggravated
[a]ssault, two counts of [r]obbery, and three counts of
[c]onspiracy. On August 27, 1996, [Govan] was sentenced to a
life term imprisonment, plus a term of thirty-one to sixty-two
years, to run concurrently with the life sentence. The Superior
Court affirmed the judgment of sentence on April 13, 1999. On
July 29, 1999, the Pennsylvania Supreme Court denied a Petition
for Allowance of Appeal.
[Govan] filed a first counseled PCRA petition on June 22,
2000, which the court dismissed on July 12, 2002. The Superior
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Court affirmed the court’s dismissal of the first PCRA on
September 26, 2003, and on March 16, 2004, the [Pennsylvania]
Supreme Court denied a Petition for Allowance of Appeal.
[Govan] filed a second PCRA on May 24, 2004, seeking
relief based upon recantation testimony of a Commonwealth
witness at trial. The court appointed counsel. The court deemed
the second PCRA untimely, and dismissed the [p]etition on
February 16, 2005. The Superior Court vacated the trial court
[o]rder, and remanded the matter to the PCRA court for an
evidentiary hearing to determine the timeliness of the [p]etition
based upon the [p]risoner [m]ailbox [r]ule. An evidentiary
hearing was held on November 10, 2005. Based upon the
evidence presented therein, the court found the [p]etition to
have been timely filed. The court considered and denied the
second PCRA by [m]emorandum [o]pinion and [o]rder filed
August 18, 2006. The [c]ourt dismissed the [p]etition by [f]inal
[o]rder filed February 7, 2007. [Govan] appealed, and the
Superior Court affirmed by memorandum [o]pinion dated
November 16, 2007.
[Govan] filed a third PCRA petition on July 15, 2008 which
the court denied by [f]inal [c]ourt [o]rder on March 3, 2010.
[Govan] took no appeal. Thereafter, on March 12, 2010, [Govan]
filed a “Petition to Review Evidence Dismissed[,]” which the
court denied by [o]rder of March 18, 2012.
[Govan] filed a fourth PCRA on August 28, 2012, then an
[a]mended PCRA on September 20, 2012. [Govan] filed a
[m]otion for [d]iscovery on November 13, 2012, which the court
denied by [c]ourt [o]rder on November 19, 2012. On January
23, 2013 the court dismissed [Govan’s] fourth PCRA. [Govan]
appealed to the Superior Court and by [o]rder filed October 10,
2013, the Superior Court affirmed.
Subsequently, on August 15, 2015, [Govan] filed a fifth
PCRA.
PCRA Court Opinion, 11/24/15, at 1-2. On December 30, 2015, the PCRA
court dismissed Govan’s fifth PCRA petition as untimely. This pro se appeal
follows.
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Prior to addressing Govan’s substantive claims, we must first
determine whether the PCRA court correctly concluded that Govan’s latest
pro se PCRA petition was untimely filed.
The timeliness of a post-conviction petition is jurisdictional. See
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
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
is final, unless the petition alleges and proves an exception to the time for
filing the petition. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claims could have been presented.” Hernandez, 79 A.3d at
651-652 (citing 42 Pa.C.S.A. § 9545(b)(2)). Exceptions to the time bar must
be pled in the petition, and may not be raised for the first time on appeal.
See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see
also Pa.R.A.P. 302(a) (providing that issues not raised before the lower
court are waived and cannot be raised for the first time on appeal).
Govan’s judgment of sentence became final on October 27, 1999,
when the filing period for a writ of certiorari expired. See 42 Pa.C.S.A. §
9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, Govan needed to file the petition
at issue by October 26, 2000 in order for it to be timely.1 Govan filed the
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1
The year 2000 was a leap year, therefore October 26, 2000 constitutes one
year from the date Govan’s judgment of sentence was finalized.
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instant petition almost sixteen years later; it is blatantly untimely unless he
has satisfied the burden of pleading and proving one of the enumerated
exceptions applies.
Govan acknowledges that his petition was untimely, but claims that
the PCRA court should have granted an evidentiary hearing because he pled
the newly-discovered evidence exception in his PCRA petition. See 42
Pa.C.S.A. § 9545(b)(1)(ii); see also Appellant’s Brief, at 15. Govan
contends that the PCRA court had jurisdiction over his petition because he
presented his newly discovered evidence within sixty days of discovery. See
id. We disagree.
In order for the newly-discovered evidence exception to the PCRA time
requirement to apply, a petitioner must prove that “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.” 42 Pa.C.S.A. § 9545(b)(1)(ii).
Therefore, for the exception to apply, Govan must prove that the new
evidence, in this case Govan’s childhood mental health records, was
unknown to Govan and could not have been ascertained earlier by the
exercise of due diligence. Govan fails to plead ignorance of his childhood
mental health records. Further, Govan offers no explanation in his petition or
brief as to why he could not have obtained his medical records earlier than
June 3, 2015. Rather, Govan asserts that he meets the due diligence
requirement because he filed his fifth PCRA petition within sixty days of
receiving the medical reports. Govan’s reasoning is flawed. Govan incorrectly
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relies upon the fact that the statute requires a petitioner plead an exception
within sixty days of the date they learn of the exception to establish that he
acted with due diligence in discovering the new evidence. See 42 Pa.C.S.A.
§ 9545(b)(2). However, complying with this provision only shows that a
petitioner acted with due diligence in presenting the claim to the court; it
does nothing to establish that a petitioner acted diligently in working to
discover new evidence. Therefore, these allegations do not satisfy the
requirement to plead, and establish, that the evidence could not have been
obtained earlier with the exercise of due diligence.
In sum, Govan’s latest PCRA petition is untimely, and he failed to
successfully plead any exception to the timeliness requirements of the PCRA.
Therefore, the PCRA court properly concluded that it lacked jurisdiction and
correctly denied Govan post-conviction relief without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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