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NON-PRECEDENTIAL DECISION - SEE 

### SUPERIOR COURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA

1 IN THE SUPERIOR COURT OF PENNSYLVANIA

v. EMIL M. COOPER Appellee



### Appellant No. 81 MDA 2019 Appeal 

### from the PCRA Order entered December20, 2018 In theCourt ofCommon Pleas of Lycoming County Criminal Division at No: 

### CP-41-CR-0001464-2009
BEFORE: STABILE, MURRAY, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: 

### FILEDAUGUST 

### 08, 

### 2019 Appellant, Emil M. Cooper,

### pro se appeals 

### from the December 20, 2018 

### order of the Court of Common Pleas of Lycoming 

### County dismissing as 

### untimely his 

### petition for collateral relief underthe Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 

### 9541-46. We 

### affirm. The

### factual and procedural background is not 

### at issue. 

### Briefly,following

a bench 

### trial, Appellant was found 

### guilty of 

### attempted criminal homicide, aggravated assault (2 

### counts), simple assault (2 

### counts), and possession 

### of
an 

### instrument of crime. See 

### Commonwealth v. 

### Cooper, 565 MDA 2012 (Pa. Super. filed 

### September 19, 

### 2012). On appeal, we 

### affirmed. 

### Id. Our Supreme Court denied 

### Appellant's petition for allowance of appeal on March 6, 2013.J

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Appellant filed the 

### instant PCRA 

### petition, his 

### third, on November 6, 2018. The PCRA

### court denied iton December 20, 2018. This appealfollowed. Appellant acknowledges 

### that the 

### instant petition is 

### facially 

### untimely.' However, he argues 

### that the 

### instant petition meets 

### "the newly-discovered evidence"exception underSection42 Pa.C.S.A. § 

### 9545(b)(1)(ii). Specifically, Appellant argues 

### that he did not know his 

### limited mental competence was 

### relevant at his 

### trial, appeal, and 

### collateral review, and 

### that he learned 

### about its 

### relevancy only recently. Accordingly, Appellant argues, all 

### prior counsel were 

### ineffective

### for not pursuing 

### themental incompetenceavenue. The PCRA 

### court, in reviewing the claim, found 

### that it was 

### untimely and 

### that it did not meet anyexception to the

### time-bar. We agree. All PCRA 

### petitions, "including a second or 

### subsequent 

### petition, shall be filed 

### within one

### year ofthe date the

### judgment becomes

### final." 42 Pa.C.S.A. § 

### 9545(b)(1). The 

### one-year time 

### limitation, however, can be 

### overcome if a 

### petitioner (1) alleges and proves one 

### of the 

### three exceptions set 

### forth in Section 

### 9545(b)(1)(i)-(iii) of the PCRA, and (2) files a 

### petition raising 

### this



### ' Appellant's

### judgment of sentence becamefinal June 4, 

### 2013, 

### that is, upon the 

### expiration ofthe 90

### -day period 

### for seeking 

### appellate reviewto 

### the United States Supreme Court. 

### See 42 Pa.C.S.A. § 

### 9545(b)(3); Rule 13, Rules ofthe Supreme Court of

### the United States.


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exception 

### within one 

### year of the date the claim could have been presented. 42 Pa.C.S.A. § 

### 9545(b)(2).2 "The PCRA's 

### time restrictions are

### jurisdictional in nature. Thus, 

### [i]f a PCRA 

### petition is 

### untimely, neither this Court nor the [PCRA] 

### court has 

### jurisdiction overthe petition. 

### Without

### jurisdiction, we

### simply do not have the legal 

### authority to address the 

### substantive claims." 

### Commonwealth v. 

### Chester, 895 A.2d 520, 522 (Pa. 

### 2006) 

### (first alteration in 

### original) (internal citationsand 

### quotation marks 

### omitted). As 

### timeliness is separate and 

### distinct from the merits of

### Appellant's underlying claims, we 

### first determine whether this PCRA 

### petition is

### timely filed. 

### See 

### Commonwealth v. 

### Stokes, 959 A.2d 306, 310 (Pa. 

### 2008) (consideration of 

### Brady3 claim separate 

### from consideration of its 

### timeliness). The 

### timeliness requirements of the PCRA 

### petition must be 

### met, even ifthe underlying claim is a challengeto the 

### legality of the sentence. 

### See 

### Commonwealth v. 

### Holmes, 933 A.2d 57, 60 (Pa. 2007) 

### ("Although legality of sentence is always 

### subject to review 

### within the PCRA, claims 

### must still 

### first satisfy the PCRA's 

### time limits or one of the exceptions

### thereto") (citing 

### Commonwealthv. 

### Fahy, 737A.2d 214, 223 (Pa. 

### 1999)).

2Section 

### 9545(b)(2) was 

### recentlyamended to enlarge the deadline

### from

### sixty days to oneyear. However,the 

### amendmentapplies only to claims arising on or

### after December 24, 2017.

3 

### Bradyv. 

### Maryland, 373 U.S. 83 

### (1963).

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### -S25007-19

At issue here is the newly-discovered exception. The newly-discovered exception requires a 

### petitioner to plead and prove two components: 1) the facts upon which the claim was predicated were unknown, and 

### (2) these unknown facts could not have been ascertained by 

### the exercise of due diligence. 

### See

### Commonwealth v. 

### Burton, 158A.3d 618, 638 (Pa. 

### 2017). 

### It is well-established 

### that Appellant's discovery 

### that all counsel were 

### ineffective 

### for not pursuing his 

### mental incompetence claim is not a newly- discovered

### "fact"thatqualifies

### forthe exception underSection 

### 9545(b)(1)(ii). See, 

### e.g., 

### Commonwealth v. 

### Gamboa-Taylor, 753 A.2d 780, 

### 785-86 (Pa. 

### 2000); 

### Commonwealth v. 

### Pursell, 749 A.2d 911 (Pa. 

### 2000) (claims of counsel's 

### ineffectiveness do not escape the PCRA 

### one-year time limitation merely because 

### they are presented in 

### term of 

### current's counsel 

### discovery of the 

### fact); 

### Commonwealth v. 

### Lark, 746 A.2d 585 (Pa. 

### 2000) (couching 

### argument in

### terms of 

### ineffectiveness cannot save a 

### petition

### that does notfall into exception to

### time-bar). Additionally, Appellant, in his brief, confirms

### that all 

### prior counsel were aware of his 

### mental condition, 

### they all told 

### Appellant 

### thatthey"would argue this 

### mitigating factor to the 

### trial court, butfailed to do 

### so." Appellant's Brief at 10. 

### It is clear, 

### therefore, 

### that Appellant has been aware of the alleged 

### ineffective assistance 

### of counsel 

### for a considerable period of

### time and failed to act on it in a 

### timely manner. The claim is, 

### therefore, untimely. Appellant 

### finally argues 

### that prior counsel were 

### ineffective for not seeking quashal of the 

### underlying indictment. All PCRA claims, including

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### -S25007-19

ineffective assistance of counsel claims, are 

### subjectto the same

### jurisdictional time limitation described above. As 

### with all PCRA claims, it is 

### incumbent on 

### Appellant to plead and prove by a preponderance ofthe evidence

### that he is 

### entitled to relief. 

### See, 

### e.g., 42 Pa.C.S.A. § 

### 9543(a). The 

### instant claim is 

### patently untimely, and 

### Appellant makes no 

### effort to explain 

### what exception, ifany, would save 

### thisotherwise 

### untimelyclaim. We 

### must

### therefore conclude 

### thatthe second claim is also 

### untimely. Order 

### affirmed.
Judgment Entered.

J seph D. 

### Seletyn, Prothonotary
Date: 

### 8/8/2019



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