J. S62039/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                 v.                     :
                                        :
ANTONYO MONTEZ HARRIS,                  :         No. 895 WDA 2019
                                        :
                      Appellant         :


            Appeal from the PCRA Order Entered April 1, 2019,
             in the Court of Common Pleas of Venango County
              Criminal Division at No. CP-61-CR-000352-2016


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 31, 2019

     Antonyo Montez Harris appeals pro se from the April 1, 2019 order

entered in the Court of Common Pleas of Venango County denying his second

PCRA petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The PCRA court set forth the following procedural history:

           Pursuant to a plea agreement entered into between
           the Commonwealth and [appellant] and filed with the
           [trial] court November 30, 2016, [appellant] agreed
           to plead guilty to one count of Corrupt Organizations,
           two counts of Delivery of a Controlled Substance,
           [and] one count of Criminal Use of a Communications
           Facility . . . .[1]  [Appellant] was subsequently
           sentenced on February 7, 2017, to a total aggregate
           sentence of imprisonment of a minimum of
           ninety-three (93) months, and a maximum of

1 18 Pa.C.S.A. § 911(b)(4), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A.
§ 7512(a), respectively.
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           twenty-five (25) years. [Appellant did not file a
           post-sentence motion or seek a direct appeal.]

           On June 1, 2017, [appellant] filed a pro se Petition
           for Post-Conviction Relief. On June 6, 2017, [the
           PCRA court] appointed Attorney Eric A. Padin as
           PCRA counsel. An evidentiary hearing on the PCRA
           petition was held on December 15, 2017, and on
           April 12, 2018, [the PCRA c]ourt denied the Petition.
           On May 7, 2018, [appellant] filed [a] pro se Notice of
           Appeal and Concise Statement of Errors Complained
           of on Appeal, however, Attorney Padin still
           represented [appellant], so the [PCRA c]ourt issued
           an order directing Attorney Padin to file an amended
           statement of [errors] complained of on appeal within
           twenty-one       (21)     days       [pursuant      to
           Pa.R.A.P. 1925(b)]. On May 29, 2018, Attorney Padin
           filed an amended Concise Statement.

           On July 18, 2018, [appellant] filed a pro se Petition
           for Modification of Relief, and on August 29, 2018, he
           filed a Motion to Modify and Reduce Sentence. Again,
           [the PCRA c]ourt issued an order explaining that
           Attorney Padin is still the attorney of record, so the
           motions were forwarded to him. On July 25, 2018,
           Attorney Padin filed a petition to withdraw, improperly
           entitled an Anders/Mc[C]lendon[2] brief.              On
           September 10, 2018, [appellant] filed another pro se
           Petition for Modification of Relief, but [the PCRA c]ourt
           lacked jurisdiction because the appeal was still
           pending in the Superior Court of Pennsylvania. On
           October 30, 2018, the Superior Court affirmed the
           dismissal of the PCRA [petition], and granted Attorney
           Padin's petition to withdraw. [See Commonwealth
           v. Harris, No. 690 WDA 2018, unpublished
           memorandum (Pa.Super. filed October 30, 2018).]


2  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). We note that when counsel seeks to
withdraw from an appeal involving a PCRA petition a Turner/Finley no-merit
letter is the appropriate filing. See Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988)
(en banc).


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            [On February 13, 2019, appellant filed pro se his
            second PCRA petition.] On February 26, 2019, [the
            PCRA c]ourt issued an Order stating it intended to
            dismiss the second PCRA petition without a hearing
            pursuant to Pa.R.Crim.P. 907. Attached to the Order
            was an unsigned Opinion providing [the PCRA court’s]
            analysis [of] why [it] intended to dismiss. [Appellant]
            believed [the PCRA court’s] Order denied his petition
            and filed a Notice of Appeal with the Pennsylvania
            Superior Court on March 28, 2019. On April 1, 2019,
            [the PCRA court] filed [its] Order and Opinion denying
            the second PCRA petition.[3]

PCRA court opinion, 6/24/19 at 1-3. The PCRA court directed appellant to file

a Rule 1925(b) statement.       Appellant timely complied.      The PCRA court

subsequently filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            I.     Did the PCRA court err in finding that appellant’s
                   second PCRA petition is time-barred?

            II.    Whether       an    evidentiary    hearing,    new
                   sentencing and/or new trial is warranted where
                   appellant was denied his Sixth Amendment right
                   to effective assistance of counsel where the
                   guilty plea was induced based on trial counsel’s
                   failure to advise him of the Commonwealth’s
                   initial offer to plead guilty to a lesser sentence
                   of 4 to 8 years?

            III.   Whether appellant was deprived of effective
                   assistance of counsel under state law during the
                   first PCRA proceedings where PCRA counsel
                   failed to disclose that he labored under an actual
                   conflict of interest?

3 We note that appellant’s notice of appeal is treated as having been filed on
April 1, 2019, the date the order denying the second PCRA petition was
entered. See Pa.R.A.P. 905(a)(5) (stating, “[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”).


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Appellant’s brief at 4 (unnecessary capitalization omitted).

      In his first issue, appellant contends his “second petition is not

[time-]barred under the [PCRA] given that review of the initial PCRA petition

by [this] court did not conclude until October 30, 2018.” (Id. at 8.) Appellant

further contends the discovery that his court-appointed PCRA counsel also

represented appellant’s co-defendant constitutes a newly discovered fact and

is an exception to the time-bar. (Id. at 9.)

      In order to be timely filed, a PCRA petition, including second and

subsequent petitions, must be filed within one year of when an appellant’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1) (emphasis

added).   “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 the time for seeking

the review.” 42 Pa.C.S.A. § 9545(b)(3). Our supreme court has held that the

PCRA’s time restriction is constitutionally sound. Commonwealth v. Cruz,

852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has instructed

that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is

untimely, courts lack jurisdiction over the petition.     Commonwealth v.

Wharton, 886 A.2d 1120, 1124 (Pa. 2005); see also Commonwealth v.

Callahan, 101 A.3d 118, 121 (Pa.Super. 2014) (holding courts do not have

jurisdiction over untimely PCRA petition).




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      Here, appellant’s judgment of sentence became final on March 9, 2017,

30 days after the deadline for filing a direct appeal with this court expired.4

See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(a) (requiring notice

of appeal to be filed within 30 days after entry of order from which appeal is

taken).   Therefore, appellant’s second PCRA petition filed on February 13,

2019, almost two years after his judgment of sentence became final, is

patently untimely.

      If a PCRA petition is untimely filed, the jurisdictional time-bar can only

be overcome if appellant alleges and proves one of the three statutory

exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions

to the one-year time-bar are as follows:      “(1) interference by government

officials in the presentation of the claim; (2) newly discovered facts; and

(3) an after-recognized constitutional right.” Commonwealth v. Brandon,

51   A.3d    231,      233-234   (Pa.Super.   2012),    citing   42   Pa.C.S.A.

§ 9545(b)(1)(i-iii).   A petition invoking an exception to the jurisdictional

time-bar must be filed within one year of the date that the claim could have

been presented. 42 Pa.C.S.A. § 9545(b)(2). If appellant fails to invoke a




4 We note that appellant was sentenced in open court on February 7, 2017,
but the sentencing order was not entered on the docket until February 14,
2017. Pursuant to Pa.R.A.P. 108(d)(2), “[i]n a criminal case in which no
post-sentence motion has been filed, the date of imposition of sentence in
open court shall be deemed to be the date of entry of the judgment of
sentence.”


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valid exception to the PCRA time-bar, courts are without jurisdiction to review

the petition or provide relief. Spotz, 171 A.3d at 676.

      Here, a review of appellant’s brief demonstrates that he is attempting

to assert the newly discovered facts exception to the jurisdictional time-bar

under Section 9545(b)(1)(ii). (Appellant’s brief at 9.) Our supreme court has

held that when considering a claim seeking to invoke the newly discovered

facts exception, “the petitioner must establish only that (1) the facts upon

which the claim was predicated were unknown and (2) they could not have

been ascertained by the exercise of due diligence.” Commonwealth v. Cox,

146 A.3d 221 (Pa. 2016) (citation omitted). “Due diligence does not require

perfect vigilance and punctilious care, but merely a showing the party has put

forth reasonable effort to obtain the information upon which a claim is based.”

Id. at 230 (citation and original quotation marks omitted). Appellant must

offer “evidence that he exercised due diligence in obtaining facts upon which

his claim was based.” Id. at 227, citing Commonwealth v. Breakiron, 781

A.2d 94, 98 (Pa. 2001). “[T]he presumption that information which is of public

record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii)

does not apply to pro se prisoner petitioners.” Commonwealth v. Burton,

158 A.3d 618, 638 (Pa. 2017) (emphasis in original).

      Appellant contends that in January 2019, he became aware his PCRA

counsel, at the time he represented appellant in his first PCRA petition, had

also represented appellant’s co-defendant at her plea and sentencing



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hearings.5 (Appellant’s brief at 9.) Appellant argues this information satisfies

the newly discovered facts exception to the jurisdictional time-bar.         (Id.)

Appellant states that he was not able to discover this information previously

because   he   “was    incarcerated   and   did   not   have   access   to    the

District Attorney’s file or other information otherwise readily available to the

public[.]” (Id.)

      PCRA counsel’s prior representation of appellant’s co-defendant is a

matter of public record but the presumption that this information cannot be

“unknown” for purposes of the newly discovered facts exception does not

apply here because appellant is a pro se incarcerated petitioner. See Burton,

158 A.3d at 638. Appellant, however, failed to explain how he only learned

of this information in January 2019, several years after pleading guilty in

November 2016 and why it could not have been discovered earlier. Moreover,

appellant failed to present evidence of the due diligence he exercised that led

to his eventual discovery of this information. Therefore, appellant has failed

to plead and prove evidence that established the newly discovered facts

exception to the jurisdictional time-bar.




5The trial court noted that PCRA counsel represented appellant’s co-defendant
before representing appellant in his first PCRA petition. (Trial court opinion,
6/24/18 at 6 (emphasis added).)


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      Consequently, the PCRA court lacked jurisdiction to review appellant’s

pro se second PCRA petition, and we may not review the petition on appeal.6

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/31/2019




6 Addressing appellant’s conflict of interest issue, alternatively, the trial court
stated:

            Here, there is no conflict that rises to the level of
            ineffectiveness.      Attorney    Padin    represented
            [appellant’s   co-defendant] before       representing
            [appellant], but the prior representation did not
            prejudice     [appellant].        Attorney      Padin’s
            representation of [appellant] consisted of only a
            PCRA [petition], and the arguments were related to
            an incorrect calculation of [appellant’s] Prior Record
            Score and previous attorney’s failure to file to
            withdraw [appellant’s] guilty plea and failure to file a
            direct appeal. Like the attorney in [Commonwealth
            v.] Toro, [638 A.2d 991 (Pa.Super. 1994),]
            Attorney Padin did not receive any confidential
            information, and his loyalties were not divided by
            representing both people.

Trial court opinion, 6/24/19 at 6.

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