Com. v. Butler, K. (memorandum)

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J-S13034-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. KEVIN BUTLER, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1956 EDA 2012 Appeal from the PCRA Order entered on September 19, 2011 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. CP-51-CR-0709031-1990 BEFORE: BOWES, GANTMAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED MAY 28, 2013 Kevin Butler ( Butler ) appeals, pro se, from the Order dismissing his second Petition for relief filed pursuant to the Post Conviction Relief Act ( PCRA ). See 42 Pa.C.S.A. §§ 9541-9546. We affirm. In January 1992, following a jury trial, Butler was convicted of eight counts of robbery,1 among several other offenses. The trial court sentenced Butler to an aggregate prison term of 40 to 80 years. Subsequently, this Court affirmed Butler s judgment of sentence, after which the Supreme Court of Pennsylvania denied allowance of appeal. See Commonwealth v. Butler, 630 A.2d 459 (Pa. Super. 1993) (unpublished memorandum), appeal denied, 634 A.2d 217 (Pa. 1993). 1 Relevant to this appeal, one of Butler s robbery convictions arose out of an armed robbery of a Pep Boys automotive store in Philadelphia on April 29, 1990. J-S13034-13 In December 1993, Butler timely filed a pro se PCRA Petition. Following the PCRA court s dismissal of Butler s Petition, this Court affirmed. See Commonwealth v. Butler, 742 A.2d 1141 (Pa. Super. 1999) (unpublished memorandum). Butler did not seek allowance of appeal with the Pennsylvania Supreme Court. In April 2010, Butler filed his second pro se PCRA Petition, alleging a claim of newly discovered evidence. In response, the PCRA court gave Butler Notice of its intent to dismiss his Petition without a hearing. On September 19, 2011, the PCRA court dismissed Butler s Petition as untimely. Butler timely filed a pro se Notice of appeal. On appeal, Butler raises the following issues for our review: A. Whether the PCRA[] court s dismissal of [Butler s] PCRA Petition is supported by the record or otherwise free from legal error[?] B. Whether [Butler s] PCRA Petition was filed timely or did [Butler] invoke an exception to the timeliness provision of the Post Conviction Relief Act[?] C. Whether [Butler s] after-discovered evidence satisfy [sic] the exception to the [PCRA s] one[-]year [time limitation?] D. Whether [Butler] satisfy [sic] the exception to filing newly discover[]ed evidence[?] Brief for Appellant at 5 (capitalization omitted). We will address Butler s repetitive issues simultaneously. Initially, we note that under the PCRA, any PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the -2- J-S13034-13 judgment becomes final[.] 42 Pa.C.S.A. § 9545(b)(1). The PCRA s timeliness requirements are jurisdictional in nature and a court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Here, Butler concedes that his PCRA Petition is facially untimely, as it was filed over fifteen years after his judgment of sentence became final. See Brief for Appellant at 9. However, according to Butler, he has met the requirements of the newly discovered facts exception to the PCRA s oneyear time bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii) (providing that a PCRA petitioner may file a petition after the expiration of the one-year time bar if the petitioner can plead and prove that 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[.] ). The focus of the exception is on the newly-discovered facts, not a newly discovered or newly willing source for previously known facts. Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008). Further, the petitioner must explain why he could not have obtained the new fact(s) earlier with due diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). Due diligence demands that the petitioner take reasonable steps to protect his own interests. Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010). Additionally, any PCRA petition invoking one of the statutory exceptions to the PCRA s time limitation must be filed within sixty days of -3- J-S13034-13 the date that the claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2). In the instant case, Butler argues that he met the newly discovered evidence exception by submitting to the PCRA court a letter and affidavit from his brother, Nathaniel Butler ( Nathaniel ), wherein Nathaniel confessed that he was the perpetrator of the April 29, 1990 armed robbery of the Pep Boys store.2 See Brief for Appellant at 16-18. Butler contends that he alleged this claim in his second PCRA Petition, filed on April 26, 2010, within sixty days of the date that he received Nathaniel s confession affidavit, dated April 4, 2010, thus meeting the requirement of 42 Pa.C.S.A. § 9545(b)(2). Brief for Appellant at 18. In its Opinion, the PCRA court addressed Butler s claim, adeptly set forth the applicable law, and determined that Butler had failed to meet the requirements of the newly discovered evidence exception. See PCRA Court Opinion, 8/17/12, at 5-7. Our review discloses that the PCRA court s sound rationale is supported by the record and the law, and we thus affirm on this basis. See id. Since Butler s second PCRA Petition is facially untimely and Butler has failed to meet his burden of proof with regard to the newly discovered 2 Nathaniel, who is serving a life sentence for first-degree murder, did not accept responsibility for any of the other armed robberies of which Butler was convicted. -4- J-S13034-13 evidence exception to the PCRA s time limitation, we conclude that the PCRA court properly dismissed Butler s untimely PCRA Petition without a hearing. Order affirmed. Judgment Entered. Prothonotary Date: 5/28/2013 -5-

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