J-S43006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT HUGH KIME 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 878 MDA 2023

Appeal from the PCRA Order Entered May 10, 2023

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0001361-2018

BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: MARCH 12, 2024

Robert Hugh Kime appeals from the order denying his Post Conviction 

Relief Act (“PCRA”) petition for untimeliness. See 42 Pa.C.S.A. §§ 9541-9546. 

We affirm.

In February 2019, Kime pleaded no-contest at one docket, and guilty at 

another, to charges of endangering welfare of children, corruption of minors, 

indecent assault, involuntary deviate sexual intercourse, and sexual assault.1

The court sentenced him at both dockets to a total of four and a half to 10 

years’ imprisonment, on May 8, 2019. Kime filed a notice of appeal, but he 

ultimately discontinued the appeal.

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 4304, 6301, 3126, 3123, and 3124.1, respectively. 
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On August 23, 2021, Kime filed a pro se motion that he captioned as a 

“Motion to Dismiss Criminal Informations,” which the court treated as a PCRA 

petition. The court appointed counsel. On February 25, 2022, Kime filed a 

second pro se motion to dismiss. He argued that his deadline for filing a PCRA 

petition should be extended because he did not have access to the prison law 

library due to COVID-19 restrictions.

The court held a hearing on the issue of timeliness on May 12, 2022.

Kime was represented by counsel. Jill Fisher, Unit Manager at SCI Coal 

Township, and Kime testified. Fisher testified that when the COVID-19 

pandemic started in March 2020, there was approximately one month where 

inmates could not use the law library. N.T., 5/12/22, at 28. She stated that 

after April 3, 2020, the law library was open on a limited basis. Id. Fisher 

indicated that an inmate could request access to the law library by writing 

their case name on a slip and submitting it to the librarian. Id. at 8. The 

librarian would then schedule them to come in “based on whatever she had 

available.” Id. Fisher stated that at COVID-19’s infancy, she was provided 

with a memo setting forth the prison law library’s procedures. Id. at 9, Exh. 

1. She testified that she handed out the memo to her group of inmates in her 

block, which included Kime. N.T. at 10, 12, 25. The memo gave priority access 

to the law library to inmates who were eligible to file PCRA or habeas corpus

petitions. Id. at 9. Fisher indicated that the memo was also posted on the 

prison’s bulletin board. Id. at 12. 
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Fisher stated that she spoke to Kime regularly, but she could not recall 

if Kime ever told her that he was being denied access to the law library. Id.

at 13, 15. She testified that if an inmate had informed her that he was being 

denied access to the law library, she would “send an email to the librarian and 

say can you please try to schedule this person.” Id. at 15, 27. 

Kime testified that pre-COVID-19, an inmate could request to use the 

law library by writing to the librarian. Id. at 35. According to Kime, after 

COVID-19 hit, the prison was “in a total lockdown” and inmates had no access 

to the library from March 2020 to August 2021. Id. at 36-38. Kime denied 

ever receiving a memo about the law library procedures during COVID-19 and 

stated that if Fisher had posted something, he “never saw it.” Id. at 39. Kime 

conceded that he never spoke to Fisher about access to the library to file a 

PCRA petition before the time deadline, but claimed he did not do so because 

he was under the impression that no library passes were being issued. Id. at

41-42.

The court dismissed the petition as untimely. This appeal followed. Kime 

raises the following issues:

A. Did the trial court err by finding that Mr. Kime’s motion for 

post-conviction relief was untimely, given he was subjected to 

governmental interference pursuant to 42 Pa.C.S.A. § 

9545(B)(1)(i) by lack of meaningful access to the prison law 

library during the COVID-19 pandemic, thereby violating his 

constitutional right to access the courts to pursue his PCRA 

claim? 

B. Did the trial court err by failing to find that Mr. Kime’s attorney 

was ineffective for neglecting to raise the issue of venue in CR1361-2018, since counts one and two of that case were based 
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upon conduct that was alleged to have occurred one time in 

Somerset County, years before, thereby making those two 

counts not part of a single criminal episode?

Kime’s Br. at 2-3 (suggested answers omitted). 

On appeal from the denial or grant of relief under the PCRA, our review 

is limited to determining “whether the PCRA court’s ruling is supported by the 

record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436, 

442 (Pa.Super. 2018) (citation omitted).

Any petition for PCRA relief, including second and subsequent petitions, 

must be filed within one year of the date on which the judgment of sentence 

becomes final, unless the petitioner pleads and proves an exception to the 

one-year bar. 42 Pa.C.S.A. § 9545(b)(1). For purposes of 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.” Id. at § 9545(b)(3).

Courts may consider a PCRA petition filed more than one year after a 

judgment of sentence has become final only if the petitioner pleads and proves 

one of the following three statutory exceptions:

(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
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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.

Id. at § 9545(b)(1)(i)-(iii).

Any petition attempting to invoke an exception “shall be filed within one 

year of the date the claim could have been presented.” Id. at § 9545(b)(2). 

The PCRA’s time restrictions are jurisdictional, and “[i]f a PCRA petition is 

untimely, neither this Court nor the trial court has jurisdiction over the 

petition. Without jurisdiction, we simply do not have the legal authority to 

address the substantive claims.” Commonwealth v. Albrecht, 994 A.2d 

1091, 1093 (Pa. 2010) (citation omitted).

Kime’s instant PCRA petition was filed two years after his judgment of 

sentence became final. Therefore, the petition is facially untimely, and Kime

was required to plead and prove at least one of the time-bar exceptions.

Kime argues his petition is timely under the governmental interference 

exception to the PCRA time-bar. Kime’s Br. at 9. His claim is that he lacked

meaningful access to the prison law library during the COVID-19 pandemic. 

Id. Kime maintains that this lack of access to the law library violated his 

constitutional right to access the courts and thus constituted a governmental 

interference. Id. at 10-11.

To establish the governmental interference exception, a petitioner must 

plead and prove that the government interfered with the petitioner’s ability to 

present a claim, “in violation of the Constitution or laws of this Commonwealth 
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or the Constitution or laws of the United States.” See 42 Pa.C.S.A. § 

9545(b)(1)(i). The petitioner must show that he would have filed his claim 

sooner, if not for the interference of a government actor. Commonwealth v. 

Staton, 184 A.3d 949, 955 (Pa. 2018). Relevant here, “without an assertion 

of illegality on the part of government officials, restrictions on access to prison 

resources [do] not qualify a petition for the governmental interference 

exception.” Commonwealth v. Bankhead, 217 A.3d 1245, 1248 (Pa.Super. 

2019); see also Albrecht, 994 A.2d at 1095. 

Here, Kime failed to prove that prison officials interfered with his ability 

to present a timely PCRA claim. First, there were no COVID-19 restrictions in 

place from July 2019, when the judgment became final, until March 2020. 

Therefore, Kime had almost eight months to research and prepare his PCRA 

petition before the restrictions were put into place. Further, by Kime’s own 

testimony, he did not even attempt to access the law library before the end 

of the PCRA deadline. While he testified that he was under the impression that 

he could not access the library during the pandemic, he presented no 

evidence, such as notices or directives from the prison, that supported his

claim and the PCRA court apparently did not credit his testimony. In fact, Kime 

conceded that he never spoke to Fisher about access to the library to file a 

PCRA petition. Moreover, Kime failed to describe how any alleged limited 

access to the law library during COVID-19 impeded his ability to file a timely 

PCRA petition. Nor did he plead or prove that the restrictions were illegal. 
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Since Kime’s petition was untimely, we do not reach the merits of his 

claim of ineffective assistance of counsel for failing to raise a challenge to 

venue. See Commonwealth v. Hernandez, 79 A.3d 649, 654-55 (Pa.Super. 

2013) (finding no jurisdiction to hear an ineffective assistance of counsel claim 

because of an untimely PCRA). The PCRA court correctly determined it did not 

have jurisdiction to decide the merits of Kime’s petition, and it did not err in

dismissing the petition.

Order affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 03/12/2024