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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CLAYTON RAYMOND AXE
Appellant No. 1338 MDA 2016
Appeal from the PCRA Order July 13, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001975-2011
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2017
Clayton Raymond Axe appeals pro se from the order entered July 13,
2016, in the Court of Common Pleas of York County, dismissing his second
petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541–46. A jury convicted Axe of criminal attempt – sexual
assault, and indecent exposure.1 Axe was sentenced to an aggregate term
of 54 months to 10 years’ imprisonment, and was required to register as a
sexual offender with the Pennsylvania State Police for a minimum of 10
years. In this appeal, Axe raises numerous issues, including ineffectiveness
of counsel, and the timeliness of the instant petition. See Axe’s Brief at 4–
5. Based upon the following, we affirm.
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1
18 Pa.C.S. §§ 903 and 3127(a).
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The facts underlying Axe’s arrest and convictions are summarized in
the prior memorandum decisions of this Court in this case, and we need not
reiterate them herein. On April 12, 2012, the trial court sentenced Axe as
stated above. This Court affirmed the judgment of sentence on June 27,
2013, and the Pennsylvania Supreme Court denied allowance of appeal on
January 6, 2014. Commonwealth v. Axe, 82 A.3d 473 (Pa. Super. 2013)
(unpublished memorandum) (affirming judgment of sentence), appeal
denied, 84 A.3d 1061 (2014).
Axe’s first PCRA petition was filed on December 15, 2014, raising two
claims of ineffectiveness of trial counsel. Following an evidentiary hearing,
the PCRA court dismissed Axe’s first petition, by order entered on March 4,
2014. On December 11, 2015, this Court affirmed the denial of PCRA relief
and, on April 12, 2016, the Pennsylvania Supreme Court denied allowance of
appeal. See Commonwealth v. Axe, 135 A.3d 656 (Pa. Super. 2015)
(affirming denial of PCRA relief), appeal denied, ___ A.3d ___ (Pa. 2016).
Axe filed this second PCRA petition on June 6, 2016. The PCRA court
issued Pa.R.Crim.P. 907 notice on June 16, 2016, and Axe filed a response
to the Rule 907 notice on July 11, 2016. The PCRA court dismissed the
petition on July 14, 2016. This appeal timely followed.2
Our standard of review is well established:
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2
Axe timely complied with the order of the PCRA court to file a Pa.R.A.P.
1925(b) concise statement.
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“In reviewing the denial of PCRA relief, we examine whether the
PCRA court’s determination ‘is supported by the record and free
of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67
A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).
Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016). At
the outset, we address the timeliness of Axe’s second PCRA petition, which is
the seventh and final issue raised in this appeal. See Axe’s Brief at 38–41.
“It is well-settled that the PCRA’s time restrictions are jurisdictional in
nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A
PCRA petition must be filed within one year of the date the judgment
becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “a judgment
becomes final at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
There are three statutory exceptions to the PCRA’s time bar.
Specifically, to overcome the timeliness requirements, a petitioner must
plead and prove one of the following exceptions:
(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
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(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. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a
timeliness exception must file a petition within 60 days of the date the claim
could have been presented. 42 Pa.C.S. § 9545(b)(2).
Here, Axe’s judgment of sentence became final on April 7, 2014, 90
days after the Pennsylvania Supreme Court denied Axe’s petition for
allowance of appeal on January 6, 2014, when the time for filing a petition
for writ of certiorari with the United States Supreme Court expired. See
U.S.Sup.Ct.R. 13; 42 Pa.C.S. § 9545(b)(3); see also Axe, supra, 135 A.3d
656 (unpublished memorandum, at n.1). As such, the present petition, filed
in 2016 — over two years after the judgment became final — is patently
untimely.
Axe asserts he had 60 days to file the present PCRA petition, following
the Pennsylvania Supreme Court’s order on April 12, 2016, denying
allowance of appeal on his first PCRA petition, and that this second petition
— filed June 6, 2016 — was filed within the 60 days afforded under 42
Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Lark, 746 A.2d 585, 588
(2000).
In Lark, the Pennsylvania Supreme Court explained the procedure for
filing a PCRA petition when a pending PCRA petition is resolved:
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[W]hen an appellant’s PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution of
review of the pending PCRA petition by the highest state court in
which review is sought, or upon the expiration of the time for
seeking such review. If the subsequent petition is not filed
within one year of the date when the judgment became
final, then the petitioner must plead and prove that one of
the three exceptions to the time bar under 42 Pa.C.S. §
9545(b)(1) applies. The subsequent petition must also be
filed within sixty days of the date of the order which
finally resolves the previous PCRA petition, because this is
the first “date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Id. at 588 (emphasis supplied).
Although Axe’s present petition meets the 60-day requirement, in
accordance with Lark, our review confirms that the petition fails to satisfy
any PCRA exception to overcome the time bar. See 42 Pa.C.S. §
9545(b)(1)(i)-(iii). See Lark, supra. Specifically, Axe’s reliance on the
statutory exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii) is misplaced.
Section 9545(b)(1)(ii) provides an exception to the PCRA’s one-year
time restriction where “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. § 9545(b)(1)(ii). Axe asserts his
second petition is “the first opportunity for [Axe] to file ineffectiveness
claims against PCRA counsel … after the Pennsylvania Supreme Court denied
[a]llowance of [a]ppeal on April 12, 2016[,] in the ‘First’ PCRA challenge.”
Axe’s Brief at 39. However, Axe’s argument that PCRA counsel’s
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ineffectiveness constitutes a newly discovered fact for purposes of Section
9545(b)(1)(ii), has been rejected by the Pennsylvania Supreme Court.
In Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.
2000), the Pennsylvania Supreme Court explained:
Appellant’s attempt to interweave concepts of ineffective
assistance of counsel and after-discovered evidence as a means
of establishing jurisdiction is unconvincing. Although Appellant
formulates his assertions here in terms of the discovery of new
facts not previously known to him, it is readily apparent that
Appellant’s argument, at its essence, is a claim for ineffective
assistance of PCRA counsel layered on top of trial counsel’s
ineffectiveness. This Court has stated previously that a claim for
ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits. Nevertheless, hoping
to gain the benefit of the exception, Appellant fashions the
argument that the basic facts concerning PCRA counsel’s
representation, which allegedly highlight that PCRA counsel was
ineffective, were not known to Appellant until current counsel
reviewed the file. However, subsequent counsel’s review of
previous counsel’s representation and a conclusion that previous
counsel was ineffective is not a newly discovered “fact” entitling
Appellant to the benefit of the exception for after-discovered
evidence. In sum, a conclusion that previous counsel was
ineffective is not the type of after-discovered evidence
encompassed by the exception.
Id. at 785 (citations omitted).
Furthermore, in Robinson, supra, the Pennsylvania Supreme Court
rejected the appellant’s argument for “an equitable exception to the PCRA’s
one-year filing restriction where …. a subsequent and facially untimely PCRA
petition challenges the performance of PCRA counsel.” Robinson, supra,
139 A.3d at 182.
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Accordingly, as Axe’s second petition fails to satisfy any statutory
exception to the PCRA time bar, the PCRA court properly dismissed the
instant petition as untimely.
Therefore, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2017
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