J-S78021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 DEMANUEL COLES                             :
                                            :
                    Appellant               :   No. 3366 EDA 2017

          Appeal from the PCRA Order Entered September 27, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0010550-2009


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED APRIL 04, 2019

      Demanuel Coles appeals from the denial of his request for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He

maintains the PCRA court erred in denying his petition for relief because his

trial counsel did not file a direct appeal with this Court, and therefore the PCRA

court should have reinstated his appellate rights nunc pro tunc. We affirm.

      The trial court aptly summarized the procedural history of this case as

follows:
            On November 8, 2010, the Defendant Demanuel Coles
      (“Defendant”) appeared before the Honorable Chris R. Wogan and
      pleaded guilty to aggravated assault as a felony of the second
      degree. The [c]ourt sentenced him to eleven and one-half to
      twenty-three months of incarceration, followed by fifty-four
      months of probation.

                                      ***

            [O]n June 18, 2013, the court determined that [Coles] had
      violated his probation and revoked it. On August 23, 2013, [] -

____________________________________
* Former Justice specially assigned to the Superior Court.
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       Judge Wogan further sentenced [Coles] to eleven to twenty-two
       years of imprisonment followed by three years of probation after
       a hearing regarding his violation of probation.[1]

              On January 6, 2015, [Coles] filed a Post-Conviction Relief
       Act (“PCRA”) petition pro se. On May 8[,] 2017, appointed counsel
       filed an amended PCRA petition alleging that[sic] ineffective
       assistance of counsel for failing to file [Coles’] requested appeal.
       On September 27, 2017, this [c]ourt dismissed [Coles’] PCRA
       petition and denied [Coles’] request for relief under the PCRA.

PCRA Court Pa.R.A.P. 1925(a) Opinion (“PCO”), filed January 11, 2018, at 1-

2. The amended petition did not address whether the petition was timely or if

one of the time-bar exceptions to the PCRA applied. This timely appeal

followed.

       Coles presents one issue for our review: “Did the court err by dismissing

the PCRA petition?” Coles’ Br. at 3 (suggested answer omitted).

       Our standard of review for the denial of a request for PCRA relief “is

whether the findings of the PCRA court are supported by the record and free

of legal error.” Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa.

2003). Before we address the merits of an appeal from the denial of such a

request, we must first determine the timeliness of the petition as the PCRA is

jurisdictional in nature. See id. at 723. A court, including this Court, may not

address the merits of an untimely PCRA petition, unless at least one of the




____________________________________________


1  Coles filed a post-sentence motion which the trial court granted on
September 20, 2013. The same day, the court reimposed its original sentence
of 11 to 22 years’ incarceration followed by three years of reporting probation.
See Docket, CP-51-CR-0010550-2009.

                                           -2-
J-S78021-18



time-bar exceptions applies. See Commonwealth v. Rizvi, 166 A.3d 344,

347 (Pa.Super. 2017).

      The PCRA provides that a timely PCRA petition is one that is filed within

one year of the judgment of sentence being final. See 42 Pa.C.S.A. §

9545(b)(1). A judgment of sentence is 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.A. § 9545(b)(3). When a petitioner files an untimely

PCRA petition, they must plead and prove one of the following time-bar

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

      (iii)    The right asserted in 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.




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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition asserting one of the time-bar

exceptions must be filed “within one year of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2).2

       Here, Coles’ judgment of sentence became final on October 21, 2013,

when the time to appeal to this Court expired.3 See Pa.R.A.P. 903(a).

Therefore, he had until October 21, 2014 to file a timely PCRA petition. Coles

filed the instant petition on January 6, 2015, approximately three months

beyond the deadline. The petition was untimely and therefore the trial court

was without jurisdiction to entertain the petition unless Coles pled and proved

at least one of the time-bar exceptions. See Rizvi, 166 A.3d at 349.

       In his PCRA petition, as well as in his appellate brief, Coles fails to

address the timeliness of his petition and has not pleaded or proved one of

the time-bar exceptions. He notes that he “did not know that he had a one

year time period to appeal after the judgment became final.” Coles’ Br. at 11.

However, he does not explain when he was alerted of counsel’s failure or why

he could not have ascertained this information earlier with due diligence. See

42 Pa.C.S.A. § 9545(b)(1)(ii). “Due diligence demands that the petitioner take
____________________________________________


2  The legislature amended Section 9545(b)(2) on December 24, 2018,
changing the time to assert a time-bar exception from 60 days to one year.
However, the amendment applies only to claims arising on December 24, 2017
or thereafter. Therefore, Coles had 60 days from the date he was made aware
of the time-bar exception to file a subsequent PCRA petition.

3 The 30 day deadline fell on a Sunday, so Coles had until the following Monday
to file a timely petition. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of
any such period shall fall on Saturday or Sunday, . . . such day shall be omitted
from the computation”).

                                           -4-
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reasonable steps to protect his own interests.” Commonwealth v. Monaco,

996 A.2d 1076, 1080 (Pa.Super. 2010). Additionally, his claim that trial

counsel failed to file a direct appeal, “does not save [Coles’] PCRA petition

from the timeliness requirements of Section 9545(b).” Commonwealth v.

Carr, 768 A.2d 1164, 1167 (Pa.Super. 2001). Therefore, the trial court’s

decision to dismiss Coles’ PCRA petition is “supported by the record and free

of legal error.” Abu-Jamal, 833 A.2d at 723; see also Commonwealth v.

Wilson, 824 A.2d 331, 336 (Pa.Super. 2003) (en banc) (holding that

appellant’s claim that trial counsel failed to file an appellate brief did not

relieve him of the timeliness requirements of the PCRA).

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/19




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