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[U] Commonwealth v. Frehafer

Superior Court of Pennsylvania

March 12, 2014



Appeal from the PCRA Order entered August 9, 2014, in the Court of Common Pleas of Northumberland County, Criminal Division, at No(s): CP-49-CR-0001217-2007.




Richard Allen Frehafer ("Appellant") appeals from the order denying his first petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The pertinent procedural history may be summarized as follows: On May 21, 2009, a jury convicted Appellant of rape, aggravated assault, and related offenses. On October 5, 2009, the trial court sentenced him to an aggregate term of seven to fifteen years of incarceration, and a consecutive two-year probationary term. Appellant did not file a direct appeal. On November 28, 2012, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel. The Commonwealth filed an answer to the petition, and the PCRA court held a hearing on July 1, 2013.

At the outset of the hearing, the Commonwealth asserted that the PCRA court lacked jurisdiction due to Appellant's failure to file his petition within the time restrictions of the PCRA. The PCRA court reserved ruling on the Commonwealth's claim, and proceeded to take testimony from Appellant and his witnesses. See N.T., 7/1/13, at 3-6. In an opinion filed on August 9, 2013, the PCRA court ruled that it lacked jurisdiction to consider Appellant's substantive claims because Appellant's petition was untimely, and he did not establish any exception to the PCRA's time bar. This appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

This Court's standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the petition if the PCRA court determines that the petitioner's claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 (Pa.Super. 2001).

Before addressing the issues Appellant presents on appeal, we must first consider whether the PCRA court correctly determined that Appellant's petition was untimely. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id. "Without jurisdiction, we simply do not have the legal authority to address the substantive claims" raised in an untimely petition. Id.

Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition. Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead and prove that: "(1) there has been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new constitutional right has been recognized." Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007) (citations omitted). A PCRA petition invoking one of these statutory exceptions must "be filed within sixty days of the date the claim first could have been presented." Id. at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super. 2007); see also Pa.R.A.P. 302(a) ("Issues not raised before the lower court are waived and cannot be raised for the first time on appeal.").

For purposes of the PCRA's time restrictions, Appellant's judgment of sentence became final on November 4, 2009, thirty days after the time for filing a direct appeal to this Court had expired. 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file his petition by November 4, 2010, in order for it to be timely. As Appellant filed the instant petition on November 28, 2012, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).

Within his brief, Appellant asserts that he "fits under the exceptions to the jurisdictional time bar pursuant to 42 Pa.C.S.A. § 9545(b)(1)(i) [and/or] (b)(1)(ii) due to the failure of the government to provide legal services to incarcerated individuals and because he was unaware that a lawyer who fails to use character evidence can be deemed ineffective and that a Prosecutor's comments can be deemed to constitute reversible error." Appellant's Brief at 5.

The PCRA court found no merit to Appellant's claims, and reasoned as follows:

[Appellant] has failed to show that he is eligible for relief from the one-year time bar under either exception. In support of his claim that governmental officials interfered with his ability to present his PCRA claim within one year of his judgment of sentence becoming final, [Appellant] cites his incarceration, his education level (alleged by [Appellant] to be 7th grade), and his own ignorance of his rights. These circumstances, [Appellant] argues impeded his ability to learn about his appellate and post-conviction rights and he asserts that when he did recently learn of those rights he immediately filed this Petition. A governmental official's interference, which prevents a defendant from presenting his PCRA claim, within the one-year time limit, must be "in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States." 42 Pa.C.S.A. § 9545(b)(1)(i). Clearly, [Appellant's] lack of education and his alleged ignorance of his rights was not due to any interference by a government official, lawful or otherwise. Furthermore, a defendant's status as an inmate does not qualify him for relief under this exception unless he shows that the conditions of his incarceration are illegal. Commonwealth v. Albrecht, 994 A.2d 1091 (Pa. 2010) (defendant's claim that his restricted incarceration status as a capital inmate constituted governmental interference failed because he did not show that any of the conditions of his incarceration were illegal). Here, [Appellant] has not even alleged that any of the conditions of his incarceration were illegal, let alone proven that to be the case. Thus, [Appellant] cannot meet his burden under the governmental interference exception.
[Appellant's] argument for relief from the one-year time bar based on newly-discovered evidence is apparently based on his alleged recent discovery of his appellate or PCRA rights. [Appellant] has again failed to meet his burden. First, [Appellant's] argument that he was completely ignorant of his appellate rights is belied by the record, as the trial court did provide [him] with information concerning those rights at the time of his sentencing. Furthermore, the newly-discovered evidence exception to the one-year time bar contemplates the discovery of previously unknown facts of relevance to the defendant's prosecution. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) ("Exception (b)(1)(ii) 'requires' petitioner to allege and prove that there were 'facts' that were 'unknown' to him and that he could not have ascertained those facts by the exercise of 'due diligence.'") (Emphasis in original) (Citations omitted). [Appellant's] assertion that he just recently learned of his appellate and post-conviction rights does not qualify as a "fact" as required by the newly-discovered evidence exception.

PCRA Court Opinion, 8/9/13, at 2-4 (footnotes omitted).

Our review of the record, in conjunction with the pertinent case law, supports the PCRA court's conclusions. Albrecht, supra; Marshall, supra. See also Commonwealth v. Barrett, 761 A.2d 145, 148 (Pa.Super. 2000) (rejecting the petitioner's claim that his placement in restrictive housing constituted governmental interference). In arguing to the contrary, Appellant cites no case law to support his assertions.

In sum, because Appellant's PCRA is patently untimely, and Appellant has not met his burden of establishing an exception to the PCRA's time bar, the PCRA court correctly determined that it lacked jurisdiction to address the substantive claims raised by Appellant. Beasley, supra. We therefore affirm the PCRA court's order denying Appellant post-conviction relief.

Order affirmed.

Judgment Entered.

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