Opinion
240 WDA 2023 241 WDA 2023 J-S34028-23
01-23-2024
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY BOATRIGHT Appellant COMMONWEALTH OF PENNSYLVANIA v. ANTHONY BOATRIGHT, Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the PCRA Order Entered May 5, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at Nos: CP-02-CR-0006318-2009, CP-02-CR-0009340-2009
Benjamin D. Kohler, Esq.
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM
STABILE, J.
Appellant, Anthony Boatwright, appeals from an order denying his fourth petition for relief under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We hold that the PCRA court correctly dismissed this petition as untimely, and we affirm.
In April 2010, a jury convicted Appellant of multiple sexual offenses involving two minor family members. The court subsequently sentenced him to an aggregate term of fifty to one-hundred years' imprisonment. Appellant filed post-sentence motions, which were denied. On direct appeal, we vacated the judgment of sentence and remanded for a hearing to determine if a new trial was warranted. After a hearing, the trial court ordered a new trial. On October 18, 2012, after a second jury trial, Appellant was found guilty of one count each of rape of a child, forcible rape, involuntary deviate sexual intercourse with a child, involuntary deviate sexual intercourse, aggravated indecent assault of a child, and two counts each of indecent assault of a person less than thirteen years of age, endangering the welfare of children, corruption of minors, indecent exposure and incest. On December 5, 2012, the court sentenced Appellant to an aggregate term of twenty-five to fifty years' incarceration. Appellant's timely post-sentence motion was denied. This Court affirmed the judgment of sentence. On May 21, 2014, our Supreme Court denied Appellant's petition for allowance of appeal.
On September 3, 2014, Appellant filed a timely pro se PCRA petition. The court appointed PCRA counsel, who subsequently filed a petition to withdraw and a no-merit letter. The PCRA court filed an order permitting counsel to withdraw and issuing notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On April 23, 2015, the PCRA court dismissed the petition. Appellant appealed pro se, and on August 11, 2016, we affirmed in an unpublished memorandum.
On October 18, 2019, Appellant filed a second pro se PCRA petition. The PCRA court subsequently issued notice of its intent to dismiss the petition without a hearing pursuant to Rule 907. On February 26, 2020, the PCRA court dismissed the petition. Appellant appealed. On May 14, 2020, we quashed the appeal pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), due to Appellant's failure to file separate notices of appeal in each of the two cases captioned above (Nos. 6318-2009 and 9340-2009).
On June 21, 2020, Appellant filed an "Application For Leave to Appeal Nunc Pro Tunc," which the PCRA court treated as a third PCRA petition. On September 3, 2020, the PCRA court issued notice of its intent to dismiss the petition without a hearing pursuant to Rule 907. On September 29, 2020, the PCRA court denied the petition. On October 22, 2021, we affirmed on the ground that Appellant's petition was untimely under the PCRA's statute of limitations, 42 Pa.C.S.A. § 9545.
On February 18, 2022, Appellant filed a "Motion For Nunc Pro Tunc Relief" in this Court contending that his third PCRA petition was timely under the newly-discovered exception to the statute of limitations, 42 Pa.C.S.A. § 9545(b)(1)(ii), because he exercised due diligence in attempting to obtain unspecified transcripts which he claims will contain exculpatory evidence. This Court forwarded Appellant's motion to the PCRA court, which treated it as a fourth PCRA petition, Notice Of Intent To Dismiss PCRA Petition, 4/4/22, at ¶ 10, and determined that it was untimely. Id. at ¶¶ 13-15.
On May 5, 2022, the PCRA court entered an order dismissing Appellant's petition. Although the court sent this order to Appellant in prison by certified mail, the court became aware on February 1, 2023 that Appellant had not received the order due to administrative error. Order, 2/9/23. Accordingly, the court reinstated Appellant's right of appeal. Id. On February 19, 2023, Appellant filed a timely notice of appeal.
In his appellate brief, Appellant contends in his Statement of Questions Presented that there was ineffective assistance by counsel "at all stages of the proceedings" and government interference that is "still ongoing," that the conduct of the trial judge prejudiced him, and that he was denied due process. Appellants' Brief at 4.
Despite its title as a petition for "nunc pro tunc relief", the petition under review is nothing more than a request for relief under the PCRA, since it purports to invoke the newly discovered evidence exception to the PCRA. Thus, the PCRA court properly treated this petition as a PCRA petition. On review of orders denying PCRA relief, our standard is to determine whether the PCRA court's ruling is free of legal error and supported by the record. Commonwealth v. Orlando, 156 A.3d 1274, 1280 (Pa. Super. 2017).
As a prefatory matter, we must address whether we have jurisdiction over this appeal. If a PCRA petition is untimely, neither this Court nor the PCRA court has jurisdiction over the petition, and without jurisdiction, we lack the legal authority to address its substantive claims. Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006), overruled on other grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020).
Appellant's judgment of sentence became final on September 19, 2014, ninety days after his petition for allowance of appeal was denied by the Pennsylvania Supreme Court, when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. The present petition was filed more than seven years later and is untimely on its face. Thus, the PCRA court lacked jurisdiction to review Appellant's petition unless he was able to successfully plead and prove one of the three statutory exceptions to the PCRA's time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
The three exceptions to the PCRA's time bar require the petitioner to "plead and prove" that:
(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
(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). Exceptions to the time-bar must be pled in the petition and may not be raised for the first time on appeal. See Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal). Further, "[a]lthough this Court is willing to construe liberally materials filed by a pro se litigant, pro se status generally confers no special benefit upon an appellant." Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003). Even liberally construed, Appellant has failed to plead and prove that any of his claims constitute a valid exception to the PCRA time-bar.
Appellant's petition purports to invoke Section 9545(b)(1)(ii), the newly discovered fact exception, which "requires [a] 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." Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). "The focus of the exception is on the newly discovered facts, not on a newly discovered or newly willing source for previously known facts." Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). "Due diligence demands that the petitioner take reasonable steps to protect his own interests. A petitioner must explain why he could not have learned of the new fact(s) earlier with the exercise of due diligence." Commonwealth v. Williams, 35 A.3d 44, 53 (Pa. Super. 2011).
Appellant did not attempt to invoke subsections (b)(1)(i) or (b)(1)(iii) of Section 9545. Therefore, we need not address these provisions.
Appellant insists in his petition that he has exercised due diligence by making exhaustive efforts to obtain unspecified transcripts. He fails, however, to identify any new exculpatory facts-or indeed any new facts whatsoever. Absent any allegation of new facts, his petition fails to "plead and prove" his right to relief under the newly discovered evidence exception in Section 9545(b)(1)(ii). For these reasons, the PCRA court properly dismissed Appellant's PCRA petition.
Order affirmed.
Judgment Entered,