J-S53010-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellee              :
                                           :
             v.                            :
                                           :
AMIN EMMANUEL FLOWERS,                     :
                                           :
                     Appellant             :   No. 184 MDA 2015

                   Appeal from the PCRA Order January 2, 2015,
                      Court of Common Pleas, Lebanon County,
                  Criminal Division at No. CP-38-CR-0000193-2012

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED AUGUST 17, 2015

       Appellant, Amin Emmanuel Flowers (“Flowers”), appeals from the

order entered on January 2, 2015 by the Court of Common Pleas, Lebanon

County, denying his petition for relief pursuant to the Post-Conviction Relief

Act (“PCRA”).1 For the reasons set forth herein, we affirm.

       The PCRA court provided the following summary of the factual and

procedural history:

                On November 14, 2011, Trooper Luke Straniere
             [(“Trooper Straniere”)] of the Pennsylvania State
             Police was conducting traffic patrol on the
             Pennsylvania Turnpike. While driving within Lebanon
             County, Trooper Straniere encountered a vehicle
             traveling unusually slow in the right lane of travel.
             The driver had headphones in both ears in violation
             of Section 3314(a) of the Vehicle Code. As a result,
             Trooper Straniere conducted a traffic stop.



1
    42 Pa.C.S.A. §§ 9541-46.
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             Trooper Straniere identified [] Flowers [] as the
          driver of this vehicle.     He learned during the
          encounter that the vehicle he stopped was owned by
          Christopher Flowers. No explanation was provided
          with respect to why [Flowers] was operating the
          vehicle owned by someone else.

             Trooper Straniere was familiar with Christopher
          Flowers from a previous encounter. He stated that
          Christopher Flowers has an extensive history of drug
          trafficking.   During a prior encounter on the
          Turnpike, Trooper Straniere stated that Christopher
          Flowers possessed a bag containing $12,000 in cash
          that he could not adequately explain.

              Trooper Straniere issued a written warning to
          [Flowers] for the headphone use. He then stated
          that [Flowers] was free to go.         After Trooper
          Straniere terminated the initial traffic stop, he
          initiated conversation with [Flowers]. He asked for
          [Flowers’] permission to search the vehicle.
          [Flowers] responded: “Do you have to search the
          vehicle?”    [Flowers] then asked: “What would
          happen if I do not allow the search?”        Trooper
          Straniere responded that he would call a canine to
          sniff the vehicle.[] As a result, [Flowers] signed a
          Consent to Search form. During the search that
          ensued, Trooper Straniere located marijuana and
          cocaine. As a result, [Flowers] was charged with two
          counts of Possession With Intent To Deliver A
          Controlled Substance[, 35 P.S. § 780-113(a)(30),]
          and one count of Possession Of Drug Paraphernalia[,
          35 P.S. § 780-113(a)(32)].

             [Flowers] waived arraignment and the case was
          set to proceed to trial on July 9, 2012. [Flowers]
          was provided with discovery, which included the
          police report, Miranda waiver and consent form, and
          other documents on March 20, 2012.[] On May 3,
          [Flowers] filed a Motion to Suppress. An omnibus
          pre-trial hearing was conducted on August 1, 2012
          at which Trooper Straniere testified and was
          subjected to extensive cross-examination.        On



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          August 24, 2012, the Commonwealth filed a Motion
          to Dismiss, claiming that [Flowers] did not establish
          a reasonable expectation of privacy in the vehicle
          that was searched. [The trial court] dismissed the
          Suppression Motion on September 19th. [Flowers]
          filed a Motion to Reconsider, which [was] also
          denied.

              After waiving his jury trial and then withdrawing
          that waiver, [Flowers] ultimately entered an open
          guilty plea one half hour before trial was set to
          commence. He was sentenced on July 24, 2013 to a
          minimum of four years’ imprisonment. On June 13,
          2014, [Flowers] filed a PCRA Petition based entirely
          on Alleyne v. United States, 133 S.Ct. 2151 (U.S.
          2013), in which he claimed that his “right to a jury
          trial” was violated. [The PCRA Court] denied his
          petition on September 15, 2014, because he had
          voluntarily waived trial when he entered his guilty
          plea.    That opinion indicated that [Flowers] had
          thirty days to file an appeal to the Pennsylvania
          Superior Court.

              On October 1, 2014, [Flowers] filed a
          Supplemental Petition for Post-Conviction Relief,
          alleging issues beyond the scope of his original
          complaint.        Specifically,  [Flowers]   alleged
          ineffectiveness of counsel based upon the fact that
          his former counsel waived a preliminary hearing and
          failed to “adequately” argue a suppression issue.
          [The] Supplemental Petition was forwarded to the
          District Attorney’s Office but not directly to [the
          PCRA] [c]ourt. As a result, [the PCRA court was] not
          immediately aware of the Supplemental Petition and
          did not therefore undertake any prompt action
          pertaining to it.

              On December 26, 2014, [Flowers] filed a pro se
          document entitled “Motion Objecting To Decision Of
          The Courts…[.]”      This motion contained largely
          boilerplate information that was not case-specific.
          However, the pro se document did include an
          allegation that [Flowers’] initial counsel erred by



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            convincing him to waive his preliminary hearing. It
            also contained allegations that his former counsel
            “failed to properly challenge meritorious issues at the
            discovery hearing…[.]”[] …

                On January 2, 2015, [the PCRA court] entered a
            Court Order to address [Flowers’] “Motion Objecting
            To Decision Of The Courts…[.]” In [the] Court Order,
            [the PCRA court] reiterated the fact that [the court]
            had denied [Flowers’] initial PCRA on September 15,
            2014. [The PCRA court] noted that [Flowers] did not
            file an Appeal from [the] September 15, 2014 Court
            Order. [The PCRA court’s] January 2, 2015 Order
            also noted [Flowers’] Supplemental Petition for
            Post[-]Conviction Relief that was filed on October 1,
            2014.     [The PCRA court] addressed both of the
            issues raised by [Flowers] in his Supplemental
            Petition.    With respect to [Flowers’] argument
            regarding waiver of the preliminary hearing, [the
            PCRA court] cited case law that has established that
            once a defendant’s case is resolved by a finding of
            guilt before the Court of Common Pleas, issues
            pertaining to the preliminary hearing are deemed
            moot because they are deemed to be subsumed by
            what occurred before the Court of Common Pleas.
            With respect to [Flowers’] allegations of error with
            respect to counsel’s performance at the pre-trial
            hearing, [the PCRA court] deemed those allegations
            “imprecise and vague” and [] denied them on that
            basis. [The PCRA court] therefore reiterated that all
            of [Flowers’] proffered claims for relief under the
            Post[-]Conviction Relief Act were denied without the
            need to conduct a factual hearing.

Trial Court Opinion, 3/12/15, at 1-5. (footnotes omitted).

      On January 27, 2015, Flowers timely filed an appeal.            On appeal,

Flowers raises the following issues for our review:

            1. Whether plea counsel was ineffective for waiving
            [Flowers’] preliminary hearing even though [Flowers]
            wanted a hearing?



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            2. Whether plea counsel was ineffective for failing to
            adequately argue at [Flowers’] suppression hearing,
            thus causing [Flowers] to lose his motion?

Flowers’ Brief at 4.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's findings of fact, and whether the PCRA

court's determination is free of legal error.   Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry,

877 A.2d 479, 482 (Pa. Super. 2005), appeal denied, 42 A.3d 1059 (Pa.

2012)). A PCRA petitioner must establish the claim by a preponderance of

the evidence. Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).

      Before reaching the merits of a petitioner’s claim, section 9545 of the

PCRA requires that “[a]ny petition under this subchapter, including a second

or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S.A. § 9545(b)(1). 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.” 42 Pa.C.S.A.

§ 9545(b)(3).

      This Court has held that the timeliness requirement of the PCRA is

“mandatory and jurisdictional in nature.”    Commonwealth v. McKeever,

947 A.2d 782, 784-85 (Pa. Super. 2008) (citing Commonwealth v. Davis,




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916 A.2d 1206, 1208 (Pa. Super. 2007)). Therefore, “no court may properly

disregard or alter them in order to reach the merits of the claims raised in a

PCRA petition that is filed in an untimely manner.” Id.

      Although the timeliness requirement is mandatory and jurisdictional,

“an untimely petition may be received when the petition alleges, and the

petitioner proves, that any of the three limited exceptions to the time for

filing set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.”

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). The

three exceptions to the timeliness requirement are:

            (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 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 n.1 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)). The petition invoking

an exception “shall be filed within 60 days of the date the claim could have

been presented.” Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.

Super. 2008) (citing 42 Pa.C.S.A. § 9545(b)(2)).




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      In this case, the trial court sentenced Flowers on July 24, 2013.

Flowers did not file a direct appeal, and thus, his judgment of sentence

became final thirty days later, on August 24, 2013. See Pa.R.A.P. 903(a).

Flowers, however, did not file the instant PCRA petition until October 1,

2014. Because Flowers did not file the instant petition within one year of the

date the judgment became final, we conclude that Flowers’ petition is facially

untimely.

      In its opinion, the PCRA court initially questioned the characterization

of Flowers’ petition, as the petition was titled, “Supplemental Petition for

Post[-]Conviction Relief.” PCRA Court Opinion, 3/12/15, at 5-6. The PCRA

court noted that “there was technically nothing pending before [the PCRA]

[c]ourt to ‘supplement.’” Id. at 6. The PCRA court nevertheless concluded

that Flowers’ petition was either fatally deficient for not complying with Rule

902 of the Rules of Criminal Procedure, governing the filing of such motions,

or Flowers’ petition was an untimely attempt to appeal the denial of his

initial PCRA petition. Id.

      Our review of the record reveals that Flowers’ “Supplemental Petition

for Post[-]Conviction Relief” was an attempt to amend his first PCRA

petition.   On September 29, 2014, Flowers sent a letter to his attorney

stating, “I would like to ask you to please file a motion to the Judge,

petitioning the Judge to allow me to motify [sic] my PCRA Petition. I only

ask this because after reviewing the Judges [sic] decision, I am aware of my



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error, in properly raising my issues and defending them.”              Flowers’

Correspondence, 9/29/14.        Counsel for Flowers subsequently filed the

“Supplemental Petition for Post[-]Conviction Relief” on October 1, 2014.

       This Court has held that “[i]n the absence of a final ruling on a timely-

filed first PCRA petition, another petition for post-conviction relief can be

considered   an   amended     first   timely   petition.”   Commonwealth     v.

Swartzfager, 59 A.3d 616, 619 (Pa. Super. 2012) (citing Commonwealth

v. Williams, 828 A.2d 981 (Pa. 2003)). In this case, however, Flowers filed

the Supplemental Petition fifteen days after the PCRA court denied his first

petition for post-conviction relief, and thus, cannot properly be considered

an amendment to his first timely petition. See id.

       Moreover, “[o]ur Supreme Court has consistently rejected ‘various

theories devised to avoid the effects of the [PCRA’s] one-year time

limitation[.]’” Commonwealth v. Callahan, 101 A.3d 118, 123 (Pa. Super.

2014) (quoting Commonwealth v. Robinson, 837 A.2d 1157, 1157 (Pa.

2003)).    Our Supreme Court has expressly rejected the theory that an

untimely petition may be treated as an “extension” of a first timely petition,

and has held that “the ‘extension’ theory is not one of the three exceptions

to the time-bar requirements in the PCRA[.]” Commonwealth v. Johnson,

841 A.2d 136, 140 (Pa. Super. 2003) (citing Robinson, 837 A.2d at 1161-

62).




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          Thus, in order to overcome the untimeliness of his petition, Flowers

must have established that one of the three exceptions to the timeliness

requirement applied in order for this Court to reach the merits of his claim.

Flowers, however, did not invoke any of the three exceptions. As a result,

we are without jurisdiction to address the merits of his claim and his petition

must be dismissed. The PCRA court did not err in denying his petition for

relief.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/17/2015




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