Opinion
J-S42032-16 No. 1669 WDA 2015
08-10-2016
COMMONWEALTH OF PENNSYLVANIA v. RONALD JASON BASCO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order September 28, 2015 in the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000579-2009 BEFORE: SHOGAN, OTT, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Ronald Jason Basco, appeals from the order entered in the Crawford County Court of Common Pleas dismissing his Post Conviction Relief Act ("PCRA") petition as untimely. Appellant argues that he was denied the effective assistance of trial and appellate counsel. We affirm.
We adopt the facts and procedural history set forth by the PCRA court's well-reasoned opinion. See PCRA Ct. Op., 9/3/15, at 1-3. Following a jury trial, Appellant was convicted of criminal trespass and defiant trespass. The trial court sentenced him to a term of sixteen to eighty-four months incarceration, with 271 days credit for presentence incarceration. Appellant filed a timely direct appeal. This Court affirmed on June 9, 2011, and Appellant's judgment of sentence became final thirty days later. See Commonwealth v. Basco , No. 1607 WDA 2010 (unpublished memorandum) (Pa. Super. filed June 9, 2011).
Appellant filed the instant PCRA petition on May 11, 2015. After the PCRA court conducted argument, the court filed a memorandum opinion and order on September 3, 2015, denying Appellant's bid for an evidentiary hearing and notifying Appellant, pursuant to Pa.R.Crim.P. 907(a), of the intent to dismiss his PCRA petition. Appellant did not respond and the PCRA court dismissed his petition on September 28, 2015.
Appellant appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court filed a Rule 1925(a) decision on January 7, 2016, which incorporated the analysis set forth in the court's September 3, 2015 opinion.
Appellant raises the following issue for review:
Whether the [PCRA] Court erred in denying Ronald J. Basco's [] Amended Petition for Post-Conviction Collateral Relief [] without the benefit of an evidentiary hearing due to a lack of jurisdiction?Appellant's Brief at 3.
Appellant argues that the PCRA court erred by failing to conduct an evidentiary hearing regarding his contention that his appellate counsel effectively abandoned him by failing to file a PCRA petition on his behalf. Specifically, Appellant avers he was unaware of appellate counsel's failure to file a PCRA petition and therefore that failure constituted an "unknown fact" sufficient to evoke an exception to the PCRA time-bar. In support, Appellant relies on Commonwealth v. Bennett , 930 A.2d 1264 (Pa. 2007) (holding that prior counsel's abandonment may constitute an "unknown fact" establishing an exception to the PCRA time-bar). To this end, Appellant contends that he properly exercised due diligence when he requested that his appellate counsel file a PCRA petition on his behalf. Appellant emphasizes that the standard of due diligence required to discover "unknown facts" under the PCRA time-bar exceptions is subjective and subject to a "reasonableness analysis." Commonwealth v. Burton , 121 A.3d 1063, 1071-72 (Pa. Super. 2015), appeal granted, 134 A.3d 446 (Pa. 2016).
We begin by noting out standard of review:
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. The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level. . . . [T]his Court reviews the PCRA court's legal conclusions de novo.Commonwealth v. Miller , 102 A.3d 988, 992 (Pa. Super. 2014) (citations and quotation marks omitted).
As a prefatory matter, we must first determine whether we have jurisdiction over the instant PCRA petition. If the PCRA petition is untimely, then there is no subject matter jurisdiction over the case. Commonwealth v. Abu-Jamal , 941 A.2d 1263, 1267-68 (Pa. 2008). As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court is precluded from considering untimely PCRA petitions. See , e.g., Commonwealth v. Murray , 753 A.2d 201, 203 ([Pa.] 2000) (stating that "given the fact that the PCRA's timeliness requirements are mandatory and jurisdictional in nature, no court may properly disregard or alter them in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner"); Commonwealth v. Fahy , 737 A.2d 214, 220 ([Pa.] 1999) (holding that where a petitioner fails to satisfy the PCRA time requirements, this Court has no jurisdiction to entertain the petition). [The Pennsylvania Supreme Court has] also held that even where the PCRA court does not address the applicability of the PCRA timing mandate, th[e Court would] consider the issue sua sponte, as it is a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief.Commonwealth v. Whitney , 817 A.2d 473, 477-78 (Pa. 2003) (some citations and parallel citations omitted).
A timely PCRA petition "must normally be filed within one year of the date the judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition is filed within 60 days of the date the claim could have been presented." Commonwealth v. Copenhefer , 941 A.2d 646, 648 (Pa. 2007) (internal citations and footnote omitted). The PCRA enumerates three exceptions to this time limitation:
(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;42 Pa.C.S. § 9545(b)(1)(i)-(iii).
(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 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.
Significantly for the instant matter, claims of ineffective counsel do not satisfy the exception to the PCRA time-bar. In Commonwealth v. Gamboa-Taylor , 753 A.2d 780, 785 (Pa. 2000), our Supreme Court explained that,
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. See Commonwealth v. Lark , 746 A.2d 585, 589-90 ([Pa.] 2000) (holding that couching argument in terms of ineffectiveness cannot save a petition that does not fall into exception to jurisdictional time bar); [ Commonwealth v.] Fahy , 737 A.2d [214, 223 (Pa. 1999) ] (citing [ Commonwealth v.] Peterkin , [722 A.2d 638 (Pa. 1998)] and "reiterat[ing] that a claim for ineffectiveness of counsel does not save an otherwise untimely petition for review on the merits"). . . .Id., 753 A.2d at 785 (parallel citation omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Anthony J. Vardaro, we conclude Appellant's issue merits no relief. The PCRA court's opinion comprehensively discusses and properly disposes of the question presented. See PCRA Ct. Op. at 3-4 (finding (1) Appellant did not exercise due diligence, as required pursuant to Bennett , when he was informed by the court that no PCRA petition had been filed on his behalf and he took no action for over two years and (2) the PCRA court lacked jurisdiction to considered the merits of Appellant's appeal where his PCRA petition was patently untimely under 42 Pa.C.S. § 9545(b)(1)(i)-(iii), and no exception to the time-bar was established). Accordingly, we affirm on the basis of the PCRA court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/10/2016
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