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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREGORY LEROY PACKER,
Appellant No. 519 MDA 2016
Appeal from the PCRA Order March 9, 2016
in the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000412-2008
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2017
Appellant, Gregory Leroy Packer, appeals pro se from the denial of his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On November 18, 2008, a jury convicted Appellant of involuntary
deviate sexual intercourse with a child and indecent assault of a person less
than thirteen years of age1 for his perpetration of various sexual acts upon
his seven-year-old daughter. On May 13, 2009, the trial court sentenced
Appellant to an aggregate term of not less than fifteen years and three
months nor more than forty-seven years’ incarceration, plus a $10,000.00
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7), respectively.
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fine. The court also found that Appellant is a sexually violent predator (SVP)
subject to lifetime registration. The court denied his post-sentence motion.
On October 27, 2010, this Court affirmed Appellant’s conviction, but vacated
the fine and remanded the case to the trial court for a hearing regarding his
ability to pay.2 (See Commonwealth v. Packer, No. 1114 MDA 2009,
unpublished memorandum, at **22-23, 28-29 (Pa. Super. filed Oct. 27,
2010)). Appellant did not file a request for permission to appeal with the
Pennsylvania Supreme Court.
On June 8, 2015, Appellant filed a pro se motion to correct illegal
sentence nunc pro tunc, which the court treated as a first PCRA petition.
The court appointed counsel, who filed a motion to withdraw and
Turner/Finley3 no merit letter on August 14, 2015. On December 10,
2015, the court provided notice of its intention to dismiss Appellant’s petition
without a hearing. See Pa.R.Crim.P. 907(1). Appellant responded on
January 4, 2016. The court denied the petition on March 9, 2016. Appellant
timely appealed.4
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2
On December 22, 2010, after a hearing, the trial court determined
Appellant could not pay a fine, and therefore did not impose one.
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
On June 27, 2016, although not ordered to do so, Appellant filed a concise
statement of errors complained of on appeal; the court filed an opinion on
July 18, 2016. See Pa.R.A.P. 1925.
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Appellant raises nine questions for this Court’s review:
1. Did the court err in dismissing Appellant’s PCRA [petition]
on timeliness?
2. Was Appellant denied effective assistance of counsel by
Trisha Hoover when she failed to file requested appeal to the
Pennsylvania Supreme Court?
3. Is Appellant’s sentence unconstitutional?
4. Is Megan’s Law unconstitutional?
5. Did Rhonda McDonald violate Appellant’s constitutional and
amendment rights?
6. Did Trooper Barnhart violate Appellant’s constitutional and
amendment rights?
7. Did counsel Christian Kalaus, Asst. District Attorney
Melissa Rosenkilde and Judge William S. Kieser violate
Appellant’s constitutional and amendment rights?
8. Did counsel Trisha Hoover violate Appellant’s constitutional
and amendment rights?
9. Was Appellant’s constitutional and amendment rights
violated during the entire criminal proceedings?
(Appellant’s Brief, at 12) (some capitalization omitted).
Our standard of review of the court’s denial of a PCRA petition is well-
settled:
Our standard of review of a PCRA court’s dismissal of a
PCRA petition is limited to examining whether the PCRA court’s
determination is supported by the record evidence and free of
legal error. Before addressing the merits of Appellant’s claims,
we must first determine whether we have jurisdiction to
entertain the underlying PCRA petition.
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Commonwealth v. Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016)
(citations omitted)
Here, the PCRA court found that it lacked jurisdiction because
Appellant’s petition was untimely and he failed to plead and prove any
exception to the PCRA time-bar. (See Order, 3/09/16, at 1). We agree.
It is well-settled that:
A PCRA petition, including a second or subsequent one, must be
filed within one year of the date the petitioner’s judgment of
sentence became final, unless he pleads and proves one of the
three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
judgment becomes final at the conclusion of direct review by this
Court or the United States Supreme Court, or at the expiration
of the time for seeking such review. 42 Pa.C.S.[A.] §
9545(b)(3). The PCRA’s timeliness requirements are
jurisdictional; therefore, a court may not address the merits of
the issues raised if the petition was not timely filed. The
timeliness requirements apply to all PCRA petitions, regardless of
the nature of the individual claims raised therein. The PCRA
squarely places upon the petitioner the burden of proving an
untimely petition fits within one of the three exceptions. . . .
Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations
and footnote omitted).
In the case sub judice, Appellant’s judgment of sentence became final
on November 26, 2010, at the expiration of the time for him to seek review
in our Supreme Court. See Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3).
Therefore, he had one year from that date to file a petition for collateral
relief unless he pleaded and proved that a timing exception applied. See 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on
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June 8, 2015, is untimely on its face and we will only review its merits if he
pleads and proves one of the statutory exceptions to the time-bar.
The three statutory exceptions to the timeliness provisions
in the PCRA allow for very limited circumstances under which the
late filing of a petition will be excused. [See] 42 Pa.C.S.A. §
9545(b)(1). To invoke an exception, a petition must allege and
the petitioner must prove:
(i) the failure to raise a claim previously was
the result of interference by government officials
with the presentation of the claim in violation of the
Constitution or the law of this Commonwealth or the
Constitution or law 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
Pennsylvania after the time period provide[d] in this
section and has been held by that court to apply
retroactively.
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness exceptions
applies.
Whitehawk, supra at 269-70 (case citation and quotation marks omitted).
Further, “[i]f the petition is determined to be untimely, and no exception has
been pled and proven, the petition must be dismissed without a hearing
because Pennsylvania courts are without jurisdiction to consider the merits
of the petition.” Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa.
Super. 2012) (citation omitted). Also, a PCRA petition invoking one of these
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statutory exceptions must “be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant attempts to prove the applicability of the newly
discovered facts exception. (See Appellant’s Brief, at 21, 26); see also 42
Pa.C.S.A. § 9545(b)(1)(ii). Specifically, he claims that trial counsel’s
ineffectiveness, i.e. her failure to file a petition for allowance of appeal and
subsequent withdrawal, constituted a newly discovered fact pursuant to 42
Pa.C.S.A. § 9545(b)(1)(ii). (See Appellant’s Brief, at 21, 26). Additionally,
although not expressly phrased as such, he appears to invoke the newly
recognized constitutional right exception by relying on the decisions in
Alleyne v. United States, 133 S.Ct. 2151 (2013), and its progeny. (See
id. at 28, 30-31); see also 42 Pa.C.S.A. § 9545(b)(1)(iii). However,
Appellant’s reliance on these exceptions is unavailing because he has failed
to plead and prove their applicability.
First, we observe:
With respect to subsection 9545(b)(ii), we have previously
described this exception, which permits an untimely claim where
the facts upon which the claim is predicated were unknown to
the [appellant] and could not have been ascertained by the
exercise of due diligence, as an exception for after-discovered
evidence. Thus, a claim that counsel was ineffective will not
save an untimely PCRA petition. Finally, the exceptions to the
PCRA’s one-year time limit require the petitioner to file his PCRA
petition within sixty days of the date the claim could have first
been brought. Thus, the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the
sixty-day time frame of subsection 9545(b)(1)(ii).
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Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa. Super. 2001) (citations
and quotation marks omitted).
In this case, Appellant maintains that trial counsel advised him in a
November 1, 2010 letter that this Court affirmed his conviction, and that he
thereafter told her several times that he wished to seek permission to appeal
in the Pennsylvania Supreme Court. (See Appellant’s Brief, at 19; see also
PCRA Court Opinion, 7/18/16, at 5-6). However, as observed by the PCRA
court:
Although many of the letters tend to show that Appellant wanted
his counsel to file an appeal to the Pennsylvania Supreme Court,
they do not show that his petition is timely. Instead, they show
a gap of about [three-and-one-half] years from roughly the end
of 2011 until the filing of Appellant’s petition on June 8, 2015.
Appellant failed to allege any steps he took to determine the
status of his appeal during this time period. Diligence demands
that Appellant take reasonable steps to protect and further his
interests. See Carr, supra at 1168. Based on Appellant’s own
pleadings and the reasonable inferences that can be drawn
therefrom, Appellant did not exercise diligence from the end of
2011 through the filing of his petition in 2015. Furthermore, the
mere fact that Appellant alleged that counsel was ineffective for
failing to file his requested appeal does not save his petition
from the PCRA’s timeliness requirements. See id. Therefore,
Appellant’s claims that counsel failed to file a requested appeal
to the Pennsylvania Supreme Court are untimely.
(PCRA Ct. Op., at 5-6) (citation formatting provided). We agree with the
sound reasoning of the PCRA court. Appellant has failed to establish the
applicability of the newly discovered facts exception to the PCRA time-bar
where he has not shown that he acted with due diligence. See Carr, supra
at 1168 (“absent assertions of due diligence, the mere discovery of trial
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counsel’s failure to file a direct appeal, after the one-year window to file a
PCRA petition, does not place Appellant under subsection 9545(b)(1)(ii)”).
Next, although not phrased as such, Appellant is attempting to claim
the applicability of the newly recognized constitutional right exception. (See
Appellant’s Brief, at 31). Specifically, he alleges that the United States
Supreme Court’s reasoning in Alleyne5 should be applied retroactively to his
case.6 (See id.). However, the Pennsylvania Supreme Court has expressly
held that “Alleyne does not apply retroactively to cases pending on
collateral review[.]” Commonwealth v. Washington, 142 A.3d 810, 820
(Pa. 2016). Therefore, Appellant’s reliance on Alleyne and its progeny is
fatal to his claim. Hence, this argument also fails.
Accordingly, because Appellant failed to plead and prove the
applicability of a PCRA timeliness exception, we conclude that the PCRA
court properly dismissed his untimely petition without a hearing on the basis
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5
In Alleyne, the Supreme Court of the United States held that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
must be found beyond a reasonable doubt. Alleyne, supra at 2163.
6
The Supreme Court decided Alleyne on June 17, 2013. Appellant filed the
instant petition nearly two years later, on June 8, 2015, thus violating the
sixty-day requirement of 42 Pa.C.S.A. § 9545(b)(2). See 42 Pa.C.S.A. §
9545(b)(2).
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that it lacked jurisdiction.7 See Whitehawk, supra at 269; Johnston,
supra at 1126.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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7
We also note that Appellant’s assertion that legality of sentence challenges
cannot be time-barred, as a matter of law, (see Appellant’s Brief, at 29), is
legally unpersuasive. To the contrary, “[t]hough not technically waivable, a
legality [of sentence] claim may nevertheless be lost should it be raised . . .
in an untimely PCRA petition for which no time-bar exception applies, thus
depriving the [C]ourt of jurisdiction over the claim. . . .” Commonwealth
v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation omitted).
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