J-S75005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LAWRENCE PEEL                            :
                                          :
                    Appellant             :   No. 2393 EDA 2017

                 Appeal from the PCRA Order June 23, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005658-2010


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

MEMORANDUM BY PANELLA, J.:                               FILED JULY 1, 2019

      Appellant, Lawrence Peel, challenges the order entered in the

Philadelphia County Court of Common Pleas, dismissing as untimely his first

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. After careful review, we affirm.

      We briefly recount the relevant facts and procedural history of this case.

Following a bar fight with his girlfriend that culminated in a shootout with

police, Appellant entered a guilty plea to two counts each of aggravated

assault on a protected class member and assault on a law enforcement officer

with a firearm, and one count each of carrying a firearm by a prohibited

person, carrying a firearm without a license, carrying a firearm on a public

street or public property in Philadelphia, and possessing an instrument of

crime. The court deferred sentencing for a pre-sentence investigation report.
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      Before sentencing, Appellant obtained new counsel and filed a motion

to withdraw his guilty plea. The court held a bifurcated hearing, and ultimately

denied the motion. The court then imposed a sentence of 35½ to 71 years’

incarceration. Appellant filed a motion to reconsider, which the trial court

denied. Appellant filed a timely notice of appeal, and his judgment of sentence

was affirmed by this Court. See Commonwealth v. Peel, 950 EDA 2012 (Pa.

Super., filed Sept. 17, 2013) (unpublished memorandum). Appellant did not

petition the Pennsylvania Supreme Court for allowance of appeal.

      On December 23, 2014, Appellant filed a motion for transcripts. The

record does not reveal any response to this request from the prothonotary or

trial court. Appellant then filed this PCRA petition, his first, on April 9, 2015.

The trial court appointed counsel, who filed an amended petition. In the

amended petition, counsel acknowledged the untimeliness of the petition, but

averred it should be considered timely filed due to governmental interference

– here, the failure of the prothonotary to respond to Appellant’s request for

documents. The petition also alleged that previous counsel had failed to

explain to Appellant the effect that Alleyne v. United States, 570 U.S. 99

(2013) could potentially have on his case, and that counsel ultimately

abandoned Appellant.

      The court issued notice of its intent to dismiss the petition, pursuant to

Pa.R.Crim.P. 907. The Rule 907 notice observed that Appellant’s petition was

untimely filed, and did not invoke a valid exception to the PCRA’s time bar.




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The court ultimately dismissed the petition, and Appellant filed a timely notice

of appeal.1 This case is now properly before us.

       On appeal, Appellant challenges the dismissal of his petition without a

hearing. Specifically, Appellant contends he raised a valid argument regarding

the ineffectiveness of sentencing and appellant counsel, for failure to advise

him of the implications of Alleyne.

       However, before reaching the merits of this claim, we must address our

jurisdiction. Generally, the PCRA grants jurisdiction to hear a collateral attack

on a conviction only if a petition is filed in the year after the judgment of

sentence becomes final. See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa.

2012). The judgment of sentence is finalized when the petitioner’s direct

appeal rights have been exhausted. See id., at 17. After the expiration of the

one-year period, a petitioner must plead and prove one of three enumerated

exceptions to the time bar in order to establish jurisdiction under the PCRA.

See id.

       Appellant’s judgment of sentence became final on October 17, 2013,

when his time for filing a petition for allowance of appeal to the Pennsylvania

Supreme Court expired. See Pa.R.A.P. 903(a). He therefore had until Friday,




____________________________________________


1 A timely notice of appeal must be filed within thirty days. See Pa.R.A.P.
903(a). Where, as here, the thirtieth day of the appeal period falls on a
Saturday or Sunday, that day is properly omitted from the timeliness
computation. See 1 Pa.C.S.A. § 1908. Thus, Appellant’s notice of appeal,
entered Monday, July 24, 2017, was timely filed.

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October 17, 2014 to file his petition timely. His PCRA petition, filed April 9,

2015, is facially untimely.

      In his petition, Appellant alleges he was never notified of the Superior

Court’s resolution of his direct appeal, and only discovered that his judgment

of sentence had been affirmed in November 2014, two and a half years after

filing his notice of appeal. Appellant believes this constitutes a newly

discovered fact exception to the PCRA’s time bar. He also cites the

prothonotary’s failure to respond to his motion for the production of transcripts

as reason why he could not file his petition within the one-year time bar, under

the governmental interference exception.

      To qualify for the newly discovered fact exception to the PCRA’s time

bar, Appellant must establish that the facts upon which his claim is based were

unknown to him, and could not have been ascertained by the exercise of due

diligence. 42 Pa.C.S.A. § 9545(b)(1)(ii). Due diligence requires a showing of

“reasonable efforts … to uncover facts that may support a claim for collateral

relief.” Commonwealth v. Smith, 194 A.3d 126, 134 (Pa. Super. 2018)

(citation omitted). Instead, Appellant baldly alleges that he made “diligent

failed efforts” to contact counsel regarding the outcome of his appeal, but

declines to specify what any such efforts entailed or when they occurred.

Appellant’s PCRA Petition, filed 4/9/15, at 7. Appellant therefore failed to meet

his burden to plead and prove that acted with due diligence in discovering the

result of his appeal from his judgment of sentence.




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      Further, Appellant failed to file a PCRA petition contesting this alleged

exception until several months after finally learning that his appeal had been

unsuccessful – well outside the PCRA’s then 60-day deadline for filing a

petition alleging newly discovered facts. See 42 Pa.C.S.A. § 9545(b)(2)

(expired December 23, 2018).

      As for his claim that the prothonotary’s failure to respond to his motion

for transcripts constituted governmental interference, we find this patently

frivolous. To demonstrate this timeliness exception, a petitioner is required to

show “interference by government officials with the presentation of the claim

in violation of the Constitution[.]” 42 Pa.C.S.A. § 9545(b)(1)(i). Appellant’s

motion for transcripts was dated December 16, 2014, after the one-year

deadline for filing a timely PCRA petition. If the prothonotary had responded

to Appellant’s motion on the same day of receipt and Appellant had

immediately filed his PCRA petition, that petition would have been untimely

nevertheless. Thus, Appellant cannot show that the alleged governmental

interference was the cause of his untimely filing. Given Appellant’s failure to

prove an exception to the jurisdictional time bar, the PCRA court properly

dismissed his petition.

      Moreover, even apart from the time bar, Appellant’s Alleyne claim could

not possibly succeed. In Alleyne, the Supreme Court of the United States

held that sentencing factors used to support the imposition of a mandatory

minimum sentence must be submitted to a jury for trial or admitted to by the

defendant. See 570 U.S. at 103. Appellant believes he is due relief as his

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sentence for assault of a law enforcement officer, 18 Pa.C.S.A. § 2702.1,

violates the “spirit” of Alleyne. Appellant’s Brief, at 8. However, Appellant

concedes that 18 Pa.C.S.A. § 2702.1 does not impose a mandatory minimum

sentence. See Appellant’s Brief, at 11. Thus, Alleyne could not provide an

avenue for PCRA relief in his case.

      We conclude the PCRA court correctly found Appellant’s petition

untimely. We affirm the order dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/19




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