Com. v. Begnoche, P.

Opinion

J-S19015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : PAUL JOSEPH BEGNOCHE : : Appellant : No. 1638 MDA 2016

Appeal from the PCRA Order September 14, 2016 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004038-2010

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED APRIL 19, 2017

Appellant, Paul Joseph Begnoche, appeals pro se from the order

entered in the Dauphin County Court of Common Pleas, dismissing his serial

petition filed per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. Appellant entered a negotiated guilty plea of nolo contendere

on December 5, 2011, to rape of a child and other sex offenses involving his

minor daughter. The court sentenced Appellant that day to an aggregate

term of ten to twenty years’ imprisonment plus ten years’ probation.

Appellant did not seek direct review. On November 8, 2012, Appellant

timely filed his first PCRA petition pro-se. The PCRA court denied PCRA relief

on January 24, 2014, and this Court affirmed on February 5, 2015.

Appellant timely filed a Petition for Allowance of Appeal (“PAA”) on March 6,

2015. While the PAA was still pending, Appellant filed various unsuccessful _____________________________

*Former Justice specially assigned to the Superior Court. J-S19015-17

serial petitions for collateral relief. The Pennsylvania Supreme Court denied

Appellant’s PAA on August 6, 2015. On January 6, 2017, Appellant filed his

fourth PCRA petition pro-se, while the order denying his third PCRA petition

was pending on appeal.1 The PCRA court denied the fourth petition for lack

of jurisdiction on September 14, 2016. Appellant timely filed a pro-se notice

of appeal and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on September 29, 2016.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Roy Robinson, 12 A.3d 477 (Pa.Super. 2011).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Michael Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The most recent amendments to the PCRA, effective

January 16, 1996, provide that a PCRA petition, including a second or

subsequent petition, must be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

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 three exceptions to the timeliness provisions in the PCRA allow for ____________________________________________

1 The Pennsylvania Supreme court denied Appellant’s PAA relating to the denial and dismissal of his third PCRA petition on November 8, 2016.

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very limited circumstances to excuse the late filing of a petition. 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii) (providing exceptions for interference of

government officials, newly discovered facts, or new constitutional right held

to apply retroactively). Additionally, a petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA

petition is not filed within one year of the expiration of direct review, or not

eligible for one of the three limited exceptions, or entitled to one of the

exceptions, but not filed within 60 days of the date that the claim could have

been first brought, the trial court has no power to address the substantive

merits of a petitioner’s PCRA claims.” Commonwealth v. Gamboa-Taylor,

562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

Instantly, Appellant’s judgment of sentence became final on January 4,

2012, upon expiration of the time to file a direct appeal. See Pa.R.A.P. 903.

Appellant filed the current petition on January 7, 2016, over four years after

his judgment of sentence became final. Therefore, Appellant’s petition is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Additionally, Appellant’s

petition fails to plead and prove any cognizable exception to the PCRA

timeliness requirements. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Moreover,

Appellant filed his fourth PCRA petition while the order denying his third

PCRA petition was still pending on appeal. Accordingly, the PCRA court

properly dismissed the petition for lack of jurisdiction. See

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Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000) (holding court

has no jurisdiction to review subsequent PCRA petition that is filed while

appeal from previous PCRA petition is still pending).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/19/2017

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