J-S12027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CLAYTON RAYMOND AXE

Appellant No. 1338 MDA 2016

Appeal from the PCRA Order July 13, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001975-2011

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED APRIL 10, 2017

Clayton Raymond Axe appeals pro se from the order entered July 13, 

2016, in the Court of Common Pleas of York County, dismissing his second 

petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S. §§ 9541–46. A jury convicted Axe of criminal attempt – sexual 

assault, and indecent exposure.1 Axe was sentenced to an aggregate term 

of 54 months to 10 years’ imprisonment, and was required to register as a 

sexual offender with the Pennsylvania State Police for a minimum of 10 

years. In this appeal, Axe raises numerous issues, including ineffectiveness 

of counsel, and the timeliness of the instant petition. See Axe’s Brief at 4–

5. Based upon the following, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 903 and 3127(a).
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The facts underlying Axe’s arrest and convictions are summarized in 

the prior memorandum decisions of this Court in this case, and we need not 

reiterate them herein. On April 12, 2012, the trial court sentenced Axe as 

stated above. This Court affirmed the judgment of sentence on June 27, 

2013, and the Pennsylvania Supreme Court denied allowance of appeal on 

January 6, 2014. Commonwealth v. Axe, 82 A.3d 473 (Pa. Super. 2013) 

(unpublished memorandum) (affirming judgment of sentence), appeal 

denied, 84 A.3d 1061 (2014).

Axe’s first PCRA petition was filed on December 15, 2014, raising two 

claims of ineffectiveness of trial counsel. Following an evidentiary hearing, 

the PCRA court dismissed Axe’s first petition, by order entered on March 4, 

2014. On December 11, 2015, this Court affirmed the denial of PCRA relief 

and, on April 12, 2016, the Pennsylvania Supreme Court denied allowance of 

appeal. See Commonwealth v. Axe, 135 A.3d 656 (Pa. Super. 2015) 

(affirming denial of PCRA relief), appeal denied, ___ A.3d ___ (Pa. 2016). 

Axe filed this second PCRA petition on June 6, 2016. The PCRA court 

issued Pa.R.Crim.P. 907 notice on June 16, 2016, and Axe filed a response 

to the Rule 907 notice on July 11, 2016. The PCRA court dismissed the 

petition on July 14, 2016. This appeal timely followed.2

Our standard of review is well established:

____________________________________________

2 Axe timely complied with the order of the PCRA court to file a Pa.R.A.P. 

1925(b) concise statement.
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“In reviewing the denial of PCRA relief, we examine whether the 

PCRA court’s determination ‘is supported by the record and free 

of legal error.’” Commonwealth v. Taylor, 620 Pa. 429, 67 

A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v. 

Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016). At 

the outset, we address the timeliness of Axe’s second PCRA petition, which is 

the seventh and final issue raised in this appeal. See Axe’s Brief at 38–41.

“It is well-settled that the PCRA’s time restrictions are jurisdictional in 

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A 

PCRA petition must be filed within one year of the date the judgment 

becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “a judgment 

becomes 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. § 9545(b)(3). 

There are three statutory exceptions to the PCRA’s time bar. 

Specifically, to overcome the timeliness requirements, a petitioner must 

plead and prove one of the following exceptions:

(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
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(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. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a 

timeliness exception must file a petition within 60 days of the date the claim 

could have been presented. 42 Pa.C.S. § 9545(b)(2).

Here, Axe’s judgment of sentence became final on April 7, 2014, 90 

days after the Pennsylvania Supreme Court denied Axe’s petition for 

allowance of appeal on January 6, 2014, when the time for filing a petition 

for writ of certiorari with the United States Supreme Court expired. See 

U.S.Sup.Ct.R. 13; 42 Pa.C.S. § 9545(b)(3); see also Axe, supra, 135 A.3d 

656 (unpublished memorandum, at n.1). As such, the present petition, filed 

in 2016 — over two years after the judgment became final — is patently 

untimely. 

Axe asserts he had 60 days to file the present PCRA petition, following 

the Pennsylvania Supreme Court’s order on April 12, 2016, denying 

allowance of appeal on his first PCRA petition, and that this second petition 

— filed June 6, 2016 — was filed within the 60 days afforded under 42 

Pa.C.S. § 9545(b)(1)(ii) and Commonwealth v. Lark, 746 A.2d 585, 588 

(2000).

In Lark, the Pennsylvania Supreme Court explained the procedure for 

filing a PCRA petition when a pending PCRA petition is resolved:
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[W]hen an appellant’s PCRA appeal is pending before a court, a 

subsequent PCRA petition cannot be filed until the resolution of 

review of the pending PCRA petition by the highest state court in 

which review is sought, or upon the expiration of the time for 

seeking such review. If the subsequent petition is not filed 

within one year of the date when the judgment became 

final, then the petitioner must plead and prove that one of 

the three exceptions to the time bar under 42 Pa.C.S. § 

9545(b)(1) applies. The subsequent petition must also be 

filed within sixty days of the date of the order which 

finally resolves the previous PCRA petition, because this is 

the first “date the claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2).

Id. at 588 (emphasis supplied).

Although Axe’s present petition meets the 60-day requirement, in 

accordance with Lark, our review confirms that the petition fails to satisfy 

any PCRA exception to overcome the time bar. See 42 Pa.C.S. § 

9545(b)(1)(i)-(iii). See Lark, supra. Specifically, Axe’s reliance on the 

statutory exception set forth at 42 Pa.C.S. § 9545(b)(1)(ii) is misplaced. 

Section 9545(b)(1)(ii) provides an exception to the PCRA’s one-year 

time restriction where “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.” 42 Pa.C.S. § 9545(b)(1)(ii). Axe asserts his 

second petition is “the first opportunity for [Axe] to file ineffectiveness 

claims against PCRA counsel ... after the Pennsylvania Supreme Court denied 

[a]llowance of [a]ppeal on April 12, 2016[,] in the ‘First’ PCRA challenge.” 

Axe’s Brief at 39. However, Axe’s argument that PCRA counsel’s 
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ineffectiveness constitutes a newly discovered fact for purposes of Section 

9545(b)(1)(ii), has been rejected by the Pennsylvania Supreme Court.

In Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 

2000), the Pennsylvania Supreme Court explained: 

Appellant’s attempt to interweave concepts of ineffective 

assistance of counsel and after-discovered evidence as a means 

of establishing jurisdiction is unconvincing. Although Appellant 

formulates his assertions here in terms of the discovery of new 

facts not previously known to him, it is readily apparent that 

Appellant’s argument, at its essence, is a claim for ineffective 

assistance of PCRA counsel layered on top of trial counsel’s 

ineffectiveness. This Court has stated previously that a claim for 

ineffective assistance of counsel does not save an otherwise 

untimely petition for review on the merits. Nevertheless, hoping 

to gain the benefit of the exception, Appellant fashions the 

argument that the basic facts concerning PCRA counsel’s 

representation, which allegedly highlight that PCRA counsel was 

ineffective, were not known to Appellant until current counsel 

reviewed the file. However, subsequent counsel’s review of 

previous counsel’s representation and a conclusion that previous 

counsel was ineffective is not a newly discovered “fact” entitling 

Appellant to the benefit of the exception for after-discovered 

evidence. In sum, a conclusion that previous counsel was 

ineffective is not the type of after-discovered evidence 

encompassed by the exception.

Id. at 785 (citations omitted). 

Furthermore, in Robinson, supra, the Pennsylvania Supreme Court

rejected the appellant’s argument for “an equitable exception to the PCRA’s 

one-year filing restriction where .... a subsequent and facially untimely PCRA 

petition challenges the performance of PCRA counsel.” Robinson, supra, 

139 A.3d at 182.
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Accordingly, as Axe’s second petition fails to satisfy any statutory 

exception to the PCRA time bar, the PCRA court properly dismissed the 

instant petition as untimely. 

Therefore, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2017