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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KENNETH N. BAKER :
:
Appellant : No. 1337 WDA 2019
Appeal from the PCRA Order Entered August 21, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0002240-2010
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 04, 2020
Kenneth N. Baker appeals from the order dismissing as untimely his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§
9541-9546. We conclude that Baker’s petition is untimely, and he fails to plead
and prove a time-bar exception to the PCRA. We therefore affirm the PCRA
court’s order.
On October 25, 2011, a jury convicted Baker of aggravated assault,
rape, involuntary deviate sexual intercourse, aggravated indecent assault,
indecent assault, unlawful restraint, simple assault, and the trial court
convicted him of the summary offense of harassment.1 The trial court
sentenced Baker to an aggregate sentence of 24½ to 49 years’ incarceration.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa. C.S.A. §§ 2702 (a)(1), 3121 (a)(1), 3123(a)(1), 3125(a)(2),
3126(a)(2), 2902 (a)(1), 2701(a)(1), and 2709, respectively.
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This Court affirmed Baker’s judgment of sentence on December 3, 2012.
Baker did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court.
In January 2012, Baker filed a PCRA petition. The PCRA court denied the
petition, and we affirmed. Baker filed other petitions, including at least one
other PCRA petition, all of which were denied. In July 2019, Baker filed the
instant PCRA petition. The PCRA court issued notice of its intent to dismiss the
petition without a hearing. Baker filed a document entitled “RETURNED
SERVICE REQUESTED,” which stated that his “request for PCRA should not be
dismissed.” In August 2019, the PCRA court dismissed the PCRA petition as
untimely. Baker filed a timely notice of appeal.
In September 2019, Baker filed a petition for writ of mandamus or
extraordinary relief. The court dismissed the petition without prejudice to refile
the petition after the completion of the pending appeal.
Baker raises the following issue on appeal:
1. [Baker’s] trial counsel was ineffective in accord with the
Strickland standard. At trial, [Baker’s] counsel, Kurt Fuchel,
Esq. violated [Baker’s] civil rights by excluding him from
participation in the selection of jurors. Over [Baker’s]
objections to Mr. Fuchel, counsel refused to object to the
seating of an all white jury. ([Baker] is black).
2. [Baker’s] trial counsel did not raise the issue of [Baker’s]
mental illness in mounting a defense. Counsel did not
consult to or call any psychiatric or psychological expert
testimony.
3. [Baker’s] trial counsel failed to act upon or even contact
witnesses who were provided by name by [Baker].
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4. The trial court allowed a conflict of interest, in the form
of [Baker’s] public defender (from a prior case in 1998),
Frank Marttucci, Esq., to serve as the prosecuting assistant
district attorney in this instant case.
Baker’s Br. at § (C).
When reviewing the denial or grant of relief under the PCRA, “[w]e must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super.
2018) (citation omitted).
We do not reach the merits of Baker’s claims because his petition was
untimely. See Commonwealth v. Pursell, 749 A.2d 911, 913-14 (Pa. 2000).
A criminal defendant has one year from the time the judgment of sentence
becomes final to file a timely PCRA petition, unless an exception applies. See
42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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.A. § 9545(b)(3). The
petitioner bears the burden of pleading and proving at least one of the time-
bar exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation
of the claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws 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.A. § 9545(b)(1)(i)-(iii).
Baker’s judgment of sentence became final on January 2, 2013, when
the time to file a petition for allowance of appeal with the Pennsylvania
Supreme Court expired. Pa.R.A.P. 1113(a) (providing that a petition for
allowance of appeal shall be filed within 30 days of the entry of the Superior
Court order). Baker had until January 2, 2014, to file a timely PCRA petition.
Therefore, the instant petition, which he filed in July 2019, is untimely and the
PCRA court lacked jurisdiction over it unless Baker pled and proved at least
one of the time-bar exceptions. See Commonwealth v. Albrecht, 994 A.2d
1091, 1093 (Pa. 2010).
Baker’s PCRA petition does not provide any facts to support a claim that
he satisfies a time-bar. He checked the box next to each time-bar exception
listed on the PCRA petition, but, where the petition asks for the facts
supporting the claims, Baker provided string cites of federal cases, not facts
specific to his case. Further, he claims that certain witnesses would have
testified at an evidentiary hearing, but does not explain when he learned of
the witness’s existence or whether such witnesses would establish that he
satisfied a time-bar.
In his appellate brief, Baker claims that he filed the PCRA petition at
issue in response to an August 19, 2019 order issued by a federal magistrate
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judge and the order provided newly discovered evidence. The current appeal,
however, addresses the PCRA court’s August 21, 2019 order dismissing
Baker’s July 2019 PCRA petition. Any claim relating to alleged newly
discovered evidence not raised in the July 2019 petition is not properly before
us.
Because Baker failed to pled and prove the existence of a time-bar
exception in his PCRA petition, the PCRA court did not err in dismissing the
petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2020
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