J-S51037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSE SANTIAGO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 644 EDA 2017

Appeal from the PCRA Order January 13, 2017

In the Court of Common Pleas of Chester County 

Criminal Division at No(s): CP-15-CR-0002649-2011, 

CP-15-CR-0002721-2010

BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 14, 2017

Appellant Jose Santiago appeals pro se from the Order entered in the 

Court of Common Pleas of Chester County on January 13, 2017, dismissing 

as untimely his second petition filed pursuant to the Post Conviction Relief 

Act (PCRA).1 Because this petition is untimely without an applicable 

exception, we affirm.

A prior panel of this Court set forth the relevant factual and procedural 

history herein: 

The PCRA court summarized the facts of the case as 

follows. 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S.A. §§ 9541-9546. 
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On March 26, 2012, Appellant pled guilty to 

three counts of rape, three counts of involuntary 

deviate sexual intercourse, and one count of 

aggravated indecent assault.[1] At his plea hearing, 

Appellant admitted that he engaged in sexual 

intercourse and deviate sexual intercourse with his 

daughter and with two of his nieces, all of whom were 

minors at the time of his crimes. He also admitted to 

digitally penetrating the genitals of another daughter, 

who was also a minor at the time of the crime. He 

was sentenced that day to a term of imprisonment of 

twelve and one-half to twenty-five years.

On February 21, 2013, Appellant filed a pro se

PCRA petition. [The PCRA court] appointed him PCRA 

counsel on February 27, 2013. On April 29, 2014, 

counsel moved to withdraw his representation, having 

found no issue that would entitle Appellant to postconviction relief. [The PCRA c]ourt also conducted an 

independent review of the file and of the record, which 

review revealed that Appellant’s plea was entered into 

knowingly, voluntarily and intelligently, and that his 

sentence was legal. Thus, on June 6, 2013, [the PCRA 

court] entered an order giving Appellant the mandatory 

twenty day notice of [its] intention to dismiss his PCRA 

petition without a hearing.

Appellant responded to this notice on June 27, 

2013. In his response he raised a somewhat 

ambiguous claim that he requested his trial counsel to 

file a direct appeal of his sentence.... Accordingly, 

[the PCRA court] scheduled a hearing on this issue 

[alone and ordered PCRA counsel to continue to 

represent Appellant]. 

Appellant’s PCRA hearing was held on October 

1, 2013. The evidence presented at the hearing 

revealed that Appellant never requested his trial 

counsel to file a direct appeal of his sentence. For that 

reason, on February 26, 2014, [the PCRA court] denied 

Appellant’s petition under the [PCRA]. ...

PCRA Court Opinion, 4/7/2014, at 1-2 (citations omitted).

Appellant, pro se, filed a notice of appeal on March 6, 

2014. On March 18, 2014, the PCRA court entered an order 

granting PCRA counsel leave to withdraw, and Appellant 

proceeded pro se in this Court. For reasons stated in our 

memorandum of October 7, 2014, we remanded the case for the 
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appointment of counsel and retained panel jurisdiction. Counsel 

was appointed, both counsel and the PCRA court thereafter 

complied with Pa.R.A.P. 1925, and the parties have submitted 

new briefs to this Court. 

___

1 In exchange for his guilty pleas to these counts, the 

Commonwealth withdrew over 1,600 additional counts against 

Appellant. N.T., 3/26/2012, at 12. 

Commonwealth v. Santiago, No. 808 EDA 2014, unpublished 

memorandum at 1-2 (Pa.Super. filed September 4, 2015). 

In his first PCRA petition, Appellant argued the trial court had erred in

accepting his guilty plea, and this Court found Appellant waived this issue for 

his failure to raise it on direct appeal. Id. at 3. This Court further 

determined that to the extent Appellant claimed trial counsel was ineffective 

for failing to file a post-sentence motion or a direct appeal challenging the 

validity of his plea, the PCRA court had not erred or abused its discretion in 

rejecting such claims. Id. at 3-6. On October 9, 2015, Appellant filed a 

petition for allowance of appeal with the Supreme Court of Pennsylvania, 

and the Supreme Court denied Appellant’s petition on March 8, 2016. See 

Commonwealth v. Santiago, 134 A.3d 56 (Pa. 2016) (Table). 

On December 6, 2016, Appellant filed the instant PCRA petition, his 

second, pro se. Therein, Appellant claimed his constitutional rights had been 

violated, trial counsel had been ineffective, and that the trial court abused its 

discretion in permitting counsel to withdraw. The PCRA court filed a notice 

of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907(1) on 
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December 21, 2016, and Appellant filed a response thereto on January 6, 

2017, claiming that his petition was timely because he filed it within one 

year of the denial of his initial PCRA petition. Upon review, the PCRA court 

concluded that Appellant's contentions were non-meritorious and dismissed 

the petition on January 13, 2017. 

Appellant filed his notice of appeal from the PCRA court's Order on 

February 6, 2017. In his concise statement of errors complained of on 

appeal, Appellant argued that because his first PCRA petition resulted in the 

reinstatement of his direct appeal rights nunc pro tunc, the instant PCRA 

petition was technically his first and, therefore, timely. The trial court issued 

an Opinion pursuant to Pa.R.A.P. 1925(a) on April 10, 2017. 

In his brief, Appellant presents the following Statement of the 

Questions Involved:

1. Did the [c]ourt below misconstrue timeliness of 

[A]ppellant[’]s PCRA without regard or allowance of amendment?

2. Did the court below ignore the actual innocence exception 

to timeliness?

Brief for Appellant at iv. 

“Our standard of review of the denial of PCRA relief is clear; we are 

limited to determining whether the PCRA court's findings are supported by 

the record and without legal error.” Commonwealth v. Wojtaszek, 951 

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted), 

appeal denied, 600 Pa. 733, 963 A.2d 470 (2009). Before we address the 
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merits of either issue Appellant has raised, we must first determine whether 

the instant PCRA petition was timely filed, for it is well-settled that if a PCRA 

petition is untimely, a trial court has no jurisdiction to entertain the petition. 

See Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000). 

A PCRA petition, including a second or subsequent one, shall 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 

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:

(i) the failure to raise a claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or the law of this 

Commonwealth or the Constitution or law 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 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).
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The petitioner bears the burden to allege and prove one of the 

enumerated exceptions to the one-year time-bar. See 42 Pa.C.S.A. § 

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super. 

2008) (finding that to invoke a statutory exception to the PCRA time-bar, 

petitioner must properly plead and prove all required elements of the 

exception). Moreover, “the PCRA limits the reach of the exceptions by 

providing that a petition invoking any of the exceptions must be filed within 

60 days of the date the claim first could have been presented.” 

Commonwealth v. Walters, 135 A.3d 589, 592 (Pa.Super. 2016) 

(citations omitted) see also 42 Pa.C.S.A. § 9545(b)(2). 

As the PCRA court aptly found, Appellant erroneously reasons that his 

first PCRA petition resulted in the reinstatement of his direct appeal rights 

nunc pro tunc. In our memorandum decision filed on October 4, 2014, this 

Court remanded the matter to the PCRA court for the appointment of 

counsel who was to file a 1925(b) statement nunc pro tunc, after which the 

PCRA court was directed to file either a new 1925(a) opinion or a statement 

indicating that it relied upon its prior opinion. We further indicated that 

upon the return of the record to this Court, the Prothonotary would enter a 

new briefing schedule at which time counsel may file either an advocate’s 
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brief or a petition to withdraw along with a Turner/Finley2 brief addressing 

the issues Appellant wishes to raise on appeal. Commonwealth v. 

Santiago, No. 808 EDA 2014, unpublished memorandum at 5-6 (Pa.Super. 

filed October 4, 2014). On remand, counsel was appointed, and both the 

PCRA court and counsel complied with Pa.R.A.P. 1925. In our subsequent 

memorandum decision filed on September 4, 2015, this Court affirmed the 

PCRA court’s Order denying Appellant’s first PCRA petition, not his judgment 

of sentence.

Appellant entered a guilty plea on March 26, 2012, and was sentenced 

that day. Appellant did not file a direct appeal; therefore, his judgment of 

sentence became final thirty days thereafter on April 25, 2012. See 42 

Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes final at conclusion of 

direct review or at expiration of time for seeking that review). Thus, 

Appellant had until April 25, 2013, to file a timely PCRA petition; however, 

Appellant did not file the instant petition until December 6, 2016; therefore, 

it is patently untimely under the PCRA. See 42 Pa.C.S.A. § 9545(b)(1); 

Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 753 A.2d 780 (2000). 

Consequently, Appellant is not entitled to relief on his first claim.

____________________________________________

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

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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Appellant next avers the instant PCRA petition is timely under what he 

terms the “actual innocence exception” to the PCRA time-bar. Though he 

opines that “the particulars of the actual innocence claim is not within the 

purview of This Court[,]” Appellant reasons that one’s “[a]ctual innocence 

cannot be waived.” Appellant’s Brief at 2. Appellant further states that as a 

result of multiple gunshot injuries he sustained years before the date of the 

alleged offenses, he was rendered “paralyzed from the poin[t] of impact 

south” making the reports filed by the victims “wholly fictitious.” Id. 

This claim is cognizable under the PCRA and, therefore, is subject to 

the PCRA time-bar. See Commonwealth v. Abu-Jamal, 574 Pa. 724, 738, 

833 A.2d 719, 728 (2003) (holding that although the term “actual 

innocence” is not used in 42 Pa.C.S.A. § 9543 which enumerates cognizable 

claims under the PCRA, because the PCRA specifically states it is meant to 

provide a means of relief for those convicted of crimes they did not commit 

and constitutes the sole means of obtaining collateral relief, a claim of 

“actual innocence” is cognizable under the PCRA rather than in a writ for 

habeas corpus). However, Appellant did not raise this claim in his PCRA 

petition or in his response to the PCRA court’s Rule 907 notice, and instead 

asserted it for the first time in his Rule 1925(b) statement. A PCRA 

petitioner must plead and prove his allegation of error has not been 

previously litigated or waived. 42 Pa.C.S.A. § 9543(a)(3). “[A]n issue is 

waived if the petitioner could have raised it but failed to do so before trial, at 
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trial, during unitary review, on appeal or in a prior state post-conviction 

proceeding.” 42 Pa.C.S.A. § 9544(b). Therefore, this claim is waived. 

Even if Appellant properly had preserved this issue on appeal, the 

timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner 

to demonstrate he did not know the facts upon which he based his petition 

and could not have learned those facts earlier by the exercise of due 

diligence. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 

1271 (2007). Due diligence demands that the petitioner take reasonable 

steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164, 

1168 (Pa.Super. 2001). A petitioner must explain why he could not have 

learned the new fact(s) earlier with the exercise of due diligence. 

Commonwealth v. Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 

(2001).

Certainly, Appellant was aware of his alleged gunshot injuries and 

resultant paralysis at the time he entered his guilty plea, for by his own 

admission the injuries were sustained “[y]ears prior to the supposed rapes.” 

Appellant’s Brief at 2. Yet, he has failed to explain why he did not raise this 

issue in a timely PCRA petition or within sixty days of the date on which this 

claim could have been presented. See 42 Pa.C.S.A. § 9545(b)(2); Walters, 

supra. 

For the foregoing reasons, Appellant’s PCRA petition is untimely and he 

has failed to invoke successfully any exception to the statutory time-bar. As 
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such, the PCRA court correctly determined it lacked jurisdiction to address 

the merits of Appellant’s substantive claims, and we discern no other basis 

on which to disturb the PCRA court’s dismissal of Appellant’s petition as 

untimely. Accordingly, we affirm.

Order Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/2017