J-S44040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN SAUERWINE,                           :
                                               :
                       Appellant               :       No. 408 EDA 2018

                 Appeal from the PCRA Order January 12, 2018
                in the Court of Common Pleas of Lehigh County,
             Criminal Division at No(s): CP-39-CR-0003289-2006,
              CP-39-CR-0003290-2006, CP-39-CR-0003292-2006

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 21, 2018

        Brian Sauerwine (“Sauerwine”), pro se, appeals from the Order

dismissing, as untimely filed, his third Petition for relief filed pursuant to the

Post Conviction Relief Act (“PCRA”).1 We affirm.

        In a prior appeal of the denial of PCRA relief, the PCRA court summarized

the relevant history underlying Sauerwine’s criminal conviction as follows:

               On numerous occasions between 2003 and 2006, …
        [Sauerwine] sexually assaulted his three young nieces. All of the
        girls were five years old or younger at the time of the abuse, which
        occurred when they visited [Sauerwine’s] house….

              The children eventually reported the abuse to a mother of
        one of the girls. On March 27, 2006, the mother relayed the
        reports of abuse to Lehigh County Children and Youth Services.
        The Commonwealth subsequently filed three criminal informations
        against [Sauerwine], one for each victim.

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
J-S44040-18


            On April 16, 2007, [Sauerwine] entered a guilty plea to
      indecent assault, 18 Pa.C.S.[A.] § 3126(a)(7) and (b)(ii), in each
      of these three cases…. Under the plea bargain, all other charges,
      some of which were serious felonies, were withdrawn. The plea
      bargain also required that the court give minimum confinement
      sentences which did not exceed the standard range of the
      sentencing guidelines. There was no plea bargain as to whether
      the sentences would run concurrently or consecutively.

See PCRA Court Opinion, 12/16/09, at 2-3.          Ultimately, the trial court

sentenced Sauerwine to 27 months to 15 years in prison. Sauerwine filed no

direct appeal from his judgment of sentence.

      On October 13, 2017, more than nine years after his judgment of

sentence became final, Sauerwine filed the instant PCRA Petition, his third.

Sauerwine alleged that a May 17, 2006 letter issued by the Lehigh County

Office of Children and Youth Services (“OCYS”) entitles him to relief under the

PCRA. Sauerwine further asserted that he has witnesses that will testify as to

his innocence. The PCRA court appointed counsel, who subsequently filed a

Motion to withdraw from representation, and a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), asserting that

Sauerwine’s Petition is untimely, and not subject to any exception to the

PCRA’s timeliness requirement.     After appropriate Notice, the PCRA court

dismissed Sauerwine’s PCRA Petition without a hearing.             Thereafter,

Sauerwine filed the instant timely appeal.




                                     -2-
J-S44040-18


       Before addressing the merits of Sauerwine’s argument,2 we first must

determine whether Sauerwine timely filed his PCRA Petition. A PCRA petition

must be filed within one year of the date the petitioner’s judgment of sentence

became final. 42 Pa.C.S.A. § 9545(b)(3). The one-year time limitation is

jurisdictional, and a trial court has no power to address the substantive merits

of an untimely petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-

24 (Pa. 2003); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000). The three exceptions to the one-year filing requirement are for newly

discovered facts, interference by a government official, and a newly-

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). However,

“[a]ny petition invoking an exception … shall be filed within 60 days of the

date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). The

PCRA petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

       In its Opinion, the PCRA court determined that Sauerwine’s Petition is

untimely, and that Sauerwine failed to establish an exception to the PCRA’s

timeliness requirement. See PCRA Court Opinion, 2/21/18, at 6-7. We agree

with the PCRA court’s analysis and conclusion, and affirm on this basis. See

id. Because Sauerwine’s instant PCRA Petition was untimely, and not subject




____________________________________________


2 Sauerwine has not included, in his appellate brief, a statement of the
questions involved, as required by Pa.R.A.P. 2116(a).

                                           -3-
J-S44040-18


to any of the PCRA’s timeliness exceptions, we affirm the Order of the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/18




                                   -4-
                                                                                           Circulated 08/07/2018 04:01 PM




    IN THE COURT OF COMMON PLEAS OF LE GH COUNTY, PE NSYLVANIA
                         CRIMINAL DIVISION


COMMONViE.ALTH OF PENNSYLVANIA

                 vs.                                    : NO. CR-3289, 3290, 3292-2006
                                                        : Superior Court No.: 408 EDA 2018
BRIAN SAUER WINE


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Robert L. Steinberg, .Judge:

                 On April 16, 2007, the appellant entered a guilty plea to Indecent Assault (3

counts).' The Superior Court, in affirming the dismissal of the appellant's Post Conviction Relief

Act (hereinafter PCRA) petition, recounted that the appellant had sexually assaulted his three

nieces, who were five (5) years of age or younger, numerous times. All of the abuse occurred

when the children visited the appellant's home.2

                 On October 22, 2007, the appellant received an aggregate sentence of not less

than twenty-seven (27) months nor more than fifteen (15) years in a state correctional




I
  The appellant entered a guilty plea to Indecent Assault in Lehigh County No's. CR-3289, 3290, and 3292 of 2006.
See 18 Pa.C.S. § 3 I 26(a)(7). Each of the Indecent Assault offenses were graded as felonies of the third degree.
2
  Commonwealth v. Sauerwine, 2491 EDA 2009 (Pa.Super, July 13, 2010), at p. 1.
institution.3 The appellant, after a hearing held the same date, was found to be a sexually violent

predator.

                  Counsel for the appellant filed "Defendant's Post-Sentence Motion" on October

31, 2007. On April 11, 2008, that motion was withdrawn.

                 On January 13, 2009, the appellant filed his first prose PCRA petition. Counsel

was appointed to represent the appellant, and he filed an "Amended Post Conviction Petition.''

A hearing on that petition was held on April 29, 2009.

                 At the commencement of the PCRA hearing, counsel stated that the appellant was

not seeking to withdraw his plea, nor was he seeking a new trial.4 Instead, PCRA counsel

pursued claims related to the sentencing proceeding, including trial counsel's failure to submit

psychiatric reports at sentencing. s The appellant did not object to his minimum sentence, which

he found "highly acceptable," but only his maximum sentence. 6

                 On July 30, 2009, the Honorable William E. Ford dismissed the PCRA petition.

A Notice of Appeal was filed, and the Superior Court affirmed the dismissal of the PCRA

petition on July 13, 2010. The appellant's Petition for Allowance of Appeal was denied on

December 1, 2010.

                 The appellant filed a second "Motion for Post Conviction Collateral Relief' on

May 20, 2014. The appellant alleged he was innocent of the charges, and was on "heavy psych

medication" when he plead guilty. He also claimed that his lawyer threatened him, and he was




'The appellant received identical sentences of not less than nine (9) months nor more than sixty (60) months in each
case. All of the sentences were ordered to run consecutively with each other.
'Notes of Testimony, PCRA hearing (hereinafter N.T. PCRA), at pp. 4-S, 23.
s Id.
6 Id, at pp. 22-23.

                                                         2
                                                                                                                   -
"fearful of his life being in danger." On August 18, 2014, Judge Ford dismissed the appellant's

petition."

                  No appeal was filed from that order. Instead, the appellant filed a Petition for

Writ of Habeas Corpus in the United States District Court for the Eastern District of

Pennsylvania. On December 31, 2015, the Petition for Writ of Habeas Corpus was dismissed by

the Honorable Legrome Davis. 8

                  On October 13, 2017, more than nine (9) years after his judgement of sentence

became final, the appellant filed his third PCR.A petition alleging that a letter issued by the

Lehigh County Office of Children and Youth Services (hereinafter OCYS) on May 17,. 2006,

entitles him to relief under the PCRA. He also alleged that he has "witnesses that will testify

[that he is] innocent of any and all wrong doing (sic)." Counsel was appointed to represent the

petitioner, and on December 13, 2017, counsel filed a "Motion to Withdraw as Counsel" and a

E.inkx letter.9   Not only did counsel in his "no-merit letter" find the PCRA petition untimely, but

that the OCYS letter was in existence and available prior to the entry of appellant's guilty plea.

Each of the OCYS letters were written to the appellant. Counsel explained in his letter that his

"family member's letter dated June 8, 2017, even reference[s] the OCYS letter, however, you

waited until October 13, 2017, to file your current PCRA petition."1           ° Counsel went on to state
that the letters from family members/witnesses "provide no support for an exception to the

PCRA time limits. The letters you offered simply express your family member's beliefs

regarding your guilt. "11


7
  On May 23, 2014, Judge Ford had issued a notice of his intention to dismiss the PCRA petition pursuant to
Pa.R.Crim.P. 907.
I      t. i      v   J      1 14-CV--6254; See Report and Recommendation of United States Magistrate Judge David

Strawbridge dated July 31, 2015, and Order of the Honorable Legrome D. Davis dated December 31, 201 S.
9     , ,    n.,   h v F',-1 550 A.2d 213 (Pa.Super. 1988).
10
   "No-merh" letter at p. 3.
II l,d. at p. 4.
                                                        3
                    On December 21, 2017, this Court issued a notice of our intention to dismiss

pursuant to Pa.R.Crim.P. 907( I). The appellant filed "Petitioner's Response to the Court's

Intentions to Dismiss Petitioner's PCRA Petition Before This Court" (hereinafter Pa.R.Crim.P.

907( I) Response), on January 4, 2018. The appellant in that response acknowledged that he was

in possession of the OCYS �etters as of April, 10\7, and failed to comply wi1h the sixty (60) day

requirement for invoking an exception to the time requirements of the PCRA.12 His stated

reason for not complying with the time requirement was that he was "unaware" of the statutory

requirement. See 42 Pa.C.S. § 9545(b)(2).13 Additionally, he claimed that the letter from OCYS

in some manner is exculpatory. On January 12, 2018, the appellant's third PCRA petition was

dismissed.

                    The appellant filed a timely Notice of Appeal, and a "Concise Statement of

Matters Complained Upon On Appeal" (hereinafter Concise Statement), pursuant to Pa.R.A.P.

1925(b). The appellant, ill that statement, once again points to the OCYS letter and trial

counsel's pressure on him to plead guilty as the foundation of this appeal. The appellant, having

entered guilty pleas to the three (3} Indecent Assaul\ charges after a fuU oral and written

colloquy, also asserts his innocence.



                                                Discussion

                    The appellant, who entered guilty pleas and was sentenced in 2007, has filed this

current appeal from the dismissal of his third PCRA petition. The appellant's judgment of

sentence became final in 2008, and the appellant's third PCRA petition was not filed until 2017,

making it untimely. See 42 Pa.C.S. § 9545(b)(I). Furthermore, the appellant's PCRA petition is



12
     Pa.R.Crim.P. 907(1) Response, at,i 5.
ll   ld.
                                                     4
an attempt to invoke the newly-discovered fact exception to the time bar, but is subject to

dismissal because it was not fi\ed within the required sixty (60) day timeframe, � 42 Pa.C.S. §

9545(b)(2). Specifically� the PCRA petition was not "filed within 60 days of the date the claim

could have been presented." Id.

               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. 42 Pa.CS.§ 9545(bXl).

Following the appellant's sentencing, counsel filed post-sentence motions, which were

withdrawn on April 11, 2008. No appeal was filed, and as a result, the appellant's judgment of

sentence became final on or about May 11, 2008. The appellant's third PCRA petition was not

filed until October 13t 2017� lt is patently untimely.

               The appellant, however, has attempted to avoid the time-bar by invoking the

newly-discovered facts exception to the timeliness tequiremenl. � 42 Pa.C.S. § 954S(b)(l )(ii).

The newly-discovered facts exception required the appellant to prove the following: ( l) the facts

upon which the claim was predicated were unknown; and (2) could not have been ascertained by



�i,.:.::.:.:����:.;,;·.,:::.t
                      · :=b=  s -�·U 947 A.2d 714, 720 (Pa. 2008), guotin2 �=����=�

930 A.2d 1264, 1270- 72 (Pa, 2007).

               Additionally, any petition attempting to invoke that exception must be filed

"within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2). The

appellant, by his own admission in his response to the intended dismissal of his PCRA petition,

has demonstrated the untime\iness of his petition. He admitted that he was in possession of the

OCYS letters, which were dated May 17, 2006, in April 20 I 7. His PCRA pe\1\ion, however, was

not filed until October 13, 2017, four (4) months beyond the sixty (60) day deadline. His only



                                                 5
explanation for not filing it in a timely fashion was that he was "unaware of a sixty (60) day time

period .... "14

                    An examination of the criteria to assen the newly-discovered facts exception, as it

applies to the OCYS letter and notarized letters attached to the PCRA petition, discloses a

myriad of reasons preduding the appellant from meeting its threshold. Prior to �on,

information was not unknown to a PCRA petitioner when the information was a matter of public

record. In Burton, it was held that the "presumption that information which is of public record

cannot be deemed 'unknown' for purposes of subsection 9545(bXl)(ii) does not apply to prose

petitioners." 158 A.3d at 638. Here, the appellant was represented throughout the trial as well as

in his first and third PCRA petitions. Therefore, the status of the appellant as a "pro se

                                                                         =-�� 121 A.3d 1063, 1072 (Pa.Super.
                                    ,,,,;;,,,;;;;;;-==--==,...............




2015)(en bane), afr d, 15 8 A.3 d 618 (Pa. 2017). Even so, the appellant cannot prove that he

exercised due diligence to uncover the OCYS letters. The second prong of the newly-discovered

facts exception demands "due diligence" which means "reasonable steps to protect [his] own

interest. This standard, however, entails neither perfect vigilance nor punctilious care, but rather

it requires reasonable efforts by a petitioner, based on the particular circumstances, to uncover

facts that may support a claim for collateral relief." Qgoun nwealtb v. Shil. ·h, 170 A.3d 553?

558 (Pa.Super, 2017), quoting Burton, 121 A.3d at 1071. In this case, the OCYS letters were

sent to the appellant's home address almost eleven (11) months prior to his guilty plea The

discovery of the letters would not have requited sleuth-like abilities, but only reasonable effort.

It is apparent that due diligence was not exercised.

                    The notarized letters from his brother, Todd Sauerwine, and his father, Larry

Sauerwine, which are attached to the PCRA petition, require little discussion. Their identities

14
     Pa.R.Crim.P. 907(1) Response, 1 S.
                                                                             6