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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANDREW E. GINES,                         :
                                          :
                    Appellant.            :   No. 3895 EDA 2017


              Appeal from the PCRA Order, November 3, 2017,
             in the Court of Common Pleas of Delaware County,
            Criminal Division at No(s): CP-23-CR-0000035-2007.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                      FILED JANUARY 10, 2019

      Andrew E. Gines appeals pro se from the order denying his serial petition

under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The pertinent facts and procedural history may be summarized as

follows: In 2008, a jury convicted Gines of two counts of attempted murder,

two count of aggravated assault on a police officer, and other related crimes

following a January 1, 2007 incident that occurred at the house of his son’s

girlfriend. Eventually, three local police officers responded to the scene. One

officer indicated that he was going to conduct a protective sweep of the house.

As that officer entered the house, Gines raised a handgun, aimed at the officer,

and fired two shots.

      Although Gines originally entered a guilty plea to various charges, he

was later permitted to withdraw it.     Prior to trial, Gines filed an omnibus
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pretrial motion in which he sought to suppress statements he had made to

police after he was apprehended. The trial court denied the motion, and Gines

proceeded to trial. At the conclusion of a three-day trial, the jury convicted

him of the above charges. On July 22, 2008, the trial court sentenced Gines

to an aggregate term of thirty to sixty years of imprisonment.

      Following the denial of his post-sentence motion, Gines filed an appeal

to this Court in which he challenged the denial of his suppression motion.

Finding no merit to this claim, we affirmed Gines’ judgment of sentence on

November 30, 2009. Commonwealth v. Gines, 990 A.2d 44 (Pa. Super.

2009) (unpublished memorandum). On June 23, 2010, our Supreme Court

denied his petition for allowance of appeal. Commonwealth v. Gines, 997

A.2d 1175 (Pa. 2010).

      Gines filed a timely pro se PCRA petition on June 20, 2011. The PCRA

court appointed counsel. Thereafter, PCRA counsel filed a petition to withdraw

and “no-merit” letter pursuant to the dictates of Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988 (en banc). On August 3, 2011, the PCRA court issued notice of

its intention to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907. Gines did not file a response. By order entered September 23, 2011,

the PCRA court dismissed Gines’ petition and granted PCRA counsel’s petition

to withdraw.

      Gines filed a timely pro se appeal to this Court. Although Gines raised

multiple issues in his Rule 1925(b) statement, we agreed with the PCRA court

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that his claims were difficult to decipher. See Commonwealth v. Gines, 64

A.3d 19 (Pa. Super. 2012), unpublished memorandum at 6-8. Nevertheless,

we reviewed and rejected the claims, to the extent possible, and affirmed the

order denying post-conviction relief on December 12, 2012. See id. at 9. In

doing so, we specifically noted Gines’ claim that it was “unfair” that he had to

proceed without counsel, given that “he is of low intelligence, suffers from

depression and anxiety, and is developmentally disabled.” Id. (citing Gines’

Reply Brief at 2-3). Thereafter, our Supreme Court denied Gines’ petition for

allowance of appeal. In 2014, and again in 2015, Gines unsuccessfully sought

relief by filing a second and third pro se PCRA petition.

      On July 31, 2017, Gines filed the PCRA petition at issue, his fourth, and

an amended petition on August 14, 2017. On September 14, 2017, the PCRA

court issued notice of its intention to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907.     Gines filed a response.    By order entered

November 3, 2017, the PCRA court dismissed Gines’ petition as untimely filed

and otherwise without merit. This appeal followed. Both Gines and the PCRA

court have complied with Pa.R.A.P. 1925.

      Gines raises the following issues on appeal:


         1. Did the PCRA court err in denying the PCRA petition
            without a hearing when Gines submits and maintains that
            his consecutive sentences for attempted murder and
            aggravated assault should have merged for sentencing
            purposes and therefore Gines’ consecutive sentences for
            attempted murder and aggravated assault are
            unconstitutional and illegal?


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           2. Did the PCRA court err in denying the PCRA petition
              without a hearing when Gines submits that newly
              discovered evidence in the form of his diminished
              capacity under 42 Pa.C.S.A. § 9545(b)(1)(ii) and of
              which substantial material evidence has subsequently
              become available?

See Gines’ Brief at 2. Before addressing these issues, we must first determine

if this appeal is properly before us.

        This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted). Moreover, a PCRA court may decline

to hold a hearing on the petition if the PCRA court determines that petitioner’s

claim is patently frivolous and is without a trace of support in either the record

or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011, 1104

(Pa. Super. 2001).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that he meets an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii).1 A PCRA petition invoking one of these statutory

____________________________________________


1   The exceptions to the timeliness requirement are:



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exceptions must “be filed within 60 days of the date the claims could have

been presented.” See Commonwealth v. Hernandez, 79 A.3d 649, 651-

52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).

Asserted exceptions to the time restrictions for a PCRA petition must be

included in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

       Here, because Gines did not seek further review following our Supreme

Court’s denial of his petition for allowance of appeal on June 23, 2010, his

judgment of sentence became final ninety days thereafter, or on September

21, 2010. See 42 Pa.C.S.A. § 9545(b); U.S.Sup.Ct.R. 13. Thus, Gines had

to file this PCRA petition by June 23, 2011, in order for it to be timely. As

Gines filed the instant petition in 2017, it is patently untimely unless he has



____________________________________________




       (i) the failure to raise the claim previously was the result of
       interference of 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.

42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).


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satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

       Gines has failed to plead and prove an exception to the PCRA’s time bar.

He first claims that his sentence is illegal. As long as this Court has jurisdiction

over the matter, a legality of sentencing issue is reviewable and cannot be

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

However, a legality of sentencing issue must be raised in a timely filed PCRA

petition. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Fahy, 737 A.2d

214, 223 (Pa. 1999) (explaining that, “[a]lthough legality of sentence is

always subject to review within the PCRA, claims must first satisfy the PCRA’s

time limits or one of the exceptions thereto”). In short, a PCRA petitioner

must present an illegal sentencing claim in a timely PCRA petition to be eligible

for relief. Id. Because Gines’ latest PCRA petition is untimely, the PCRA court

lacked jurisdiction to consider his illegal sentence claim.2       See generally

Commonwealth v. Whitehawk, 146 A.3d 266 (Pa. Super. 2016).


____________________________________________


2 On appeal in PCRA proceedings, this Court may affirm a PCRA court’s
decision if any ground in the record supports it. Commonwealth v. Benner,
147 A.3d 915, 919 (Pa. Super. 2016). Here, the PCRA court addressed the
sentencing/merger issue and found that it lacked merit. See PCRA Court
Opinion, 3/19/18, at 9-12. We agree. See Commonwealth v. Johnson,
874 A.2d 66, 71-72 (Pa. Super. 2005) (explaining that attempted murder and
aggravated assault upon a police officer do not merge for sentencing
purposes).




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       Gines also claims that he meets the time-bar exception based upon

“newly discovered facts” under 42 Pa.C.S.A section 9545(b)(1)(ii).3        Gines

“maintains and avers that he has newly discovered facts in the form of his

diminished capacity, intellectual and developmental disabilities which occurred

early in his childhood years and/or before his juvenile years, unstable mental

state, and suicidal ideation.”       Gines’ Brief at 9-10 (emphasis omitted).   In

support of this claim, Gines “submitted to the PCRA Court a document [from]

the SCI Camp Hill Psychology Department which is a psychiatric assessment

report concerning his unstable psychological disorders and intellectual

impairments.” Id. at 10 (footnote omitted). According to Gines, this report

establishes that he was incompetent to stand trial. Id. at 25.

       Subsection 9545(b)(1)(ii) has two components that must be alleged and

proved. Namely, the PCRA petitioner must establish that: 1) the facts upon

which the claim is predicated were unknown to him and 2) could not have

been ascertained by the exercise of due diligence. If the petitioner alleges

and proves these two components, then the PCRA court has jurisdiction over

the claim under this subsection. Commonwealth v. Brown, 111 A.3d 171,

176-77 (Pa. Super. 2015) (emphasis in original).

       The PCRA court concluded that Gines could not prove either component:


____________________________________________


3 Although Gines also raised the government-interference exception in his pro
se amended PCRA petition, and references the claim in his supporting
argument, he did not raise this exception in his Rule 1925(b) statement. Thus,
it is waived. See Pa.R.A.P. 1925(b)(4)(vii).

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            [Gines] has repeatedly averred that his self-recognized,
         long history of mental health issues both excused him from
         the requisite mens rea of the crimes for which he was
         convicted and served as fodder for trial counsel’s [alleged]
         ineffectiveness for failing to request a psychiatric
         evaluation. Simply put, [Gines] cannot claim the he was
         aware of his alleged, long term mental health issues at the
         time of the 2008 trial and sentencing, as well as
         simultaneously aver this same information was unknown to
         him until the time of his most recent 2017 collateral lodging.

            [Gines’] psychological records would have been available
         to prior counsel through the exercise of due diligence, as
         required by 42 Pa.C.S. §9545(b)(1)(ii). It is not a credible
         argument that [Gines] did not know of his own mental
         health issues so that he could not inform counsel of same
         because [Gines] mentions his “long” history of mental
         health issues in his PCRA Petition. Therefore, [Gines] was
         on ample notice of this issue and could have given counsel
         cause to “exercise due diligence” in seeking records or
         otherwise presenting [Gines’] competence to stand trial as
         a defense. [Gines] attaches as “Exhibit A” to his PCRA, a
         Psychological Assessment Report dated 6/2/2008. This is
         not new evidence and with due diligence could have been
         presented to the court much earlier than 2017.

            [Gines’] claim on this issue fails to meet the requirements
         for the statutorily enumerated reasons for an exception to
         the timeliness requirement. [Gines] simultaneously argues
         that no one knew of his mental health issues such that the
         report he recently discovered should be new evidence and
         also contends that he has a long history of mental health
         issues which were, apparently, readily evidence to his
         attorneys.

PCRA Court Opinion, 3/19/18, at 8-9 (footnote omitted).

      Our review of the record supports the PCRA court’s conclusions. Indeed,

the record suggests that both the trial court and trial counsel were aware of

Gines’ mental health history because the trial court twice ordered psychiatric

evaluations to determine whether Gines was competent to stand trial.       At


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sentencing, trial counsel informed the trial court that Gines underwent three

psychological examinations, was suicidal, and had been diagnosed with

depression. See N.T., 7/22/08, at 20-23. Although Gines now takes issue

with the extent of these previous evaluations, it is clear that he knew of his

limitations prior to the filing of his 2017 PCRA petition.   Finally, we noted

Gines’ assertion regarding his alleged mental limitations when affirming the

denial of his first PCRA petition in 2012. See Gines, supra.

      In sum, for all of the above reasons, the PCRA court correctly denied

Gines’ fourth PCRA petition.    We therefore affirm the PCRA court’s order

denying Gines post-conviction relief.

      Order affirmed.

 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/19




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