J-S58040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN DANIELS                              :
                                               :
                       Appellant               :   No. 818 WDA 2019

               Appeal from the PCRA Order Entered May 24, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0011757-2017


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 19, 2019

        Appellant, Shawn Daniels, appeals pro se from the May 24, 2019 Order

that dismissed his third Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Because Appellant’s PCRA Petition was

patently untimely and Appellant has failed to plead and prove an exception to

the PCRA time bar, we affirm the PCRA court’s dismissal.

        On March 5, 2018, Appellant entered a negotiated guilty plea to

Aggravated Indecent Assault of a Child and Indecent Assault of a Person Less

Than 13 Years of Age.1         Appellant did not file a direct appeal.   Thus, his

sentence became final on April 4, 2018.            See 42 Pa.C.S. § 9545(b)(3)

(providing “a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and

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1   18 Pa.C.S §§ 3125(b) and 3126(a)(7).
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the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review”); Pa.R.A.P. 902 (providing that a notice of appeal “shall be filed

within 30 days after the entry of the order from which the appeal is taken.”).

       On April 16, 2019, Appellant filed the instant pro se PCRA Petition, his

third, alleging ineffective assistance of plea counsel and the imposition of a

sentence greater than the lawful maximum. PCRA Petition, 4/16/18, at 2.

       On May 24, 2019, the PCRA court issued an Order dismissing Appellant’s

PCRA Petition without a hearing.2

       Appellant filed a timely pro se Notice of Appeal. Appellant and the trial

court both complied with Pa.R.A.P. 1925.3

       Appellant raises the following issues for our review:


____________________________________________


2 We acknowledge that the PCRA court did not give Appellant notice of intent
to dismiss or afford Appellant the opportunity to amend the PCRA Petition prior
to dismissing it. See Pa.R.Crim.P 907(a); Pa.R.Crim.P. 905(B). However,
Appellant has not challenged these oversights on appeal and, thus, he has
waived these potential issues. See Commonwealth v. Taylor, 65 A.3d 462
(Pa. Super. 2013) (holding that post-conviction movant waived appellate
review of post-conviction court's failure to give movant notice of intent to
dismiss or to afford movant opportunity to amend petition, by failing to
challenge such failures on appeal).

3  In response to the trial court’s June 5, 2019 Order, Appellant filed a Rule
1925(b) Statement on June 14, 2019. On June 24, 2019, the PCRA court
issued a Rule 1925(a) Opinion. On July 1, 2019, without leave from the PCRA
court and after the PCRA court filed its Opinion, Appellant filed an untimely
Amended Rule 1925(b) Statement. Because Appellant did not seek leave of
the PCRA court to file his Amended Rule 1925(b) Statement, we conclude that
the trial court acted properly in not considering this statement and we,
likewise, decline to consider it. See Commonwealth v. Jackson, 900 A.2d
936, 939 (Pa. Super. 2006) (holding issues raised in an untimely supplemental
Rule 1925(b) Statement that has been filed without leave of court are waived).

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      1. Did the [PCRA] court err by dismissing [Appellant]’s PCRA
         [Petition] without holding a hearing and without appointing
         counsel?

      2. Was trial counsel ineffective for not filing a motion about
         [Appellant]’s Miranda rights?

      3. Was trial counsel ineffective for not filing a Rule 600 motion on
         [Appellant]’s behalf?

      4. Was trial counsel ineffective for intentionally intimidating and
         coercing defendant to take a plea bargain that he did not want
         to take?

      5. Did the Commonwealth err by not bringing [Appellant] to trial
         before 180 days, Right to a Speedy Trial?

Appellant’s Br. at 4.

      We review the denial of a PCRA petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).    We give no such deference, however, to the court’s legal

conclusions.    Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).

      In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1). Appellant’s Petition, filed several weeks after his Judgment of

Sentence became final, is facially untimely.

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      Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within one year of the date the claim could have been presented. 42 Pa.C.S

§ 9545(b)(2).

      We note that even though a defendant cannot waive a legality of

sentence issue, we do not have jurisdiction to review the legality of a sentence

in a PCRA petition unless the petitioner can establish that the PCRA grants the

court the authority to exercise jurisdiction over the legality of sentence issue.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007); see 42

Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“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.” (citation omitted)).

      Instantly, Appellant fails to acknowledge the untimeliness of his PCRA

petition or invoke any exception. In his PCRA Petition, Appellant argues that

his plea counsel was ineffective for failing to file pre-trial motions, failing to

investigate whether or not police gave Appellant his Miranda rights, and

coercing and him into accepting a plea deal. Appellant also baldly asserts that

his negotiated sentence was greater than the lawful maximum. PCRA Petition

at 4, unpaginated 11.

      A claim that plea counsel is ineffective is not an exception to the PCRA

time-bar.   See Commonwealth v. Zeigler, 148 A.3d 849, 853-54 (Pa.

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Super. 2016) (finding that a claim of plea counsel’s ineffectiveness does not

satisfy an exception to the PCRA time bar). Likewise, Appellant’s claim that

his sentence was illegal fails to overcome the time bar. See Jones, supra;

Fahy, supra.

       In conclusion, Appellant has not pleaded and proved the applicability of

any of the PCRA’s timeliness exceptions and, therefore, we are without

jurisdiction to consider the merits of this appeal. The PCRA court properly

dismissed Appellant’s Petition. The record supports the PCRA court’s findings

and its Order is free of legal error. We, thus, affirm the denial of PCRA relief.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2019




____________________________________________


4Appellant’s pro se “Application to Vacate Appellant’s Sentence,” filed on
November 19, 2019, is denied.

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