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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
EMIL M. COOPER
Appellant No. 81 MDA 2019
Appeal from the PCRA Order entered December 20, 2018
In the Court of Common Pleas of Lycoming County
Criminal Division at No: CP-41-CR-0001464-2009
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 08, 2019
Appellant, Emil M. Cooper, pro se appeals from the December 20, 2018
order of the Court of Common Pleas of Lycoming County dismissing as
untimely his petition for collateral relief under the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.
The factual and procedural background is not at issue. Briefly, following
a bench trial, Appellant was found guilty of attempted criminal homicide,
aggravated assault (2 counts), simple assault (2 counts), and possession of
an instrument of crime. See Commonwealth v. Cooper, 565 MDA 2012
(Pa. Super. filed September 19, 2012). On appeal, we affirmed. Id. Our
Supreme Court denied Appellant's petition for allowance of appeal on March
6, 2013.
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Appellant filed the instant PCRA petition, his third, on November 6,
2018. The PCRA court denied it on December 20, 2018. This appeal followed.
Appellant acknowledges that the instant petition is facially untimely.'
However, he argues that the instant petition meets "the newly -discovered
evidence" exception under Section 42 Pa.C.S.A. § 9545(b)(1)(ii). Specifically,
Appellant argues that he did not know his limited mental competence was
relevant at his trial, appeal, and collateral review, and that he learned about
its relevancy only recently. Accordingly, Appellant argues, all prior counsel
were ineffective for not pursuing the mental incompetence avenue. The PCRA
court, in reviewing the claim, found that it was untimely and that it did not
meet any exception to the time -bar. We agree.
All PCRA petitions, "including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final." 42 Pa.C.S.A.
§ 9545(b)(1). The one-year time limitation, however, can be overcome if a
petitioner (1) alleges and proves one of the three exceptions set forth in
Section 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a petition raising this
' Appellant's judgment of sentence became final June 4, 2013, that is, upon
the expiration of the 90 -day period for seeking appellate review to the United
States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the
Supreme Court of the United States.
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exception within one year of the date the claim could have been presented.
42 Pa.C.S.A. § 9545(b)(2).2
"The PCRA's time restrictions are jurisdictional in nature. Thus, [i]f a
PCRA petition is untimely, neither this Court nor the [PCRA] court has
jurisdiction over the petition. Without jurisdiction, we simply do not have the
legal authority to address the substantive claims." Commonwealth v.
Chester, 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal
citations and quotation marks omitted). As timeliness is separate and distinct
from the merits of Appellant's underlying claims, we first determine whether
this PCRA petition is timely filed. See Commonwealth v. Stokes, 959 A.2d
306, 310 (Pa. 2008) (consideration of Brady3 claim separate from
consideration of its timeliness). The timeliness requirements of the PCRA
petition must be met, even if the underlying claim is a challenge to the legality
of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa.
2007) ("Although legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA's time limits or one of the
exceptions thereto") (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999)).
2Section 9545(b)(2) was recently amended to enlarge the deadline from sixty
days to one year. However, the amendment applies only to claims arising on
or after December 24, 2017.
3 Brady v. Maryland, 373 U.S. 83 (1963).
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At issue here is the newly -discovered exception. The newly -discovered
exception requires a petitioner to plead and prove two components: 1) the
facts upon which the claim was predicated were unknown, and (2) these
unknown facts could not have been ascertained by the exercise of due
diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).
It is well -established that Appellant's discovery that all counsel were
ineffective for not pursuing his mental incompetence claim is not a newly -
discovered "fact" that qualifies for the exception under Section 9545(b)(1)(ii).
See, e.g., Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa.
2000); Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000) (claims of
counsel's ineffectiveness do not escape the PCRA one-year time limitation
merely because they are presented in term of current's counsel discovery of
the fact); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (couching
argument in terms of ineffectiveness cannot save a petition that does not fall
into exception to time -bar).
Additionally, Appellant, in his brief, confirms that all prior counsel were
aware of his mental condition, they all told Appellant that they "would argue
this mitigating factor to the trial court, but failed to do so." Appellant's Brief
at 10. It is clear, therefore, that Appellant has been aware of the alleged
ineffective assistance of counsel for a considerable period of time and failed
to act on it in a timely manner. The claim is, therefore, untimely.
Appellant finally argues that prior counsel were ineffective for not
seeking quashal of the underlying indictment. All PCRA claims, including
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ineffective assistance of counsel claims, are subject to the same jurisdictional
time limitation described above. As with all PCRA claims, it is incumbent on
Appellant to plead and prove by a preponderance of the evidence that he is
entitled to relief. See, e.g., 42 Pa.C.S.A. § 9543(a). The instant claim is
patently untimely, and Appellant makes no effort to explain what exception,
if any, would save this otherwise untimely claim. We must therefore conclude
that the second claim is also untimely.
Order affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/8/2019
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