J-S54040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
TRAMALE LOCKETT,                           :
                                           :
                   Appellant               :           No. 164 WDA 2016

                Appeal from the PCRA Order December 8, 2015
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0006943-2007

BEFORE: BENDER, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 04, 2016

        Tramale Lockett (“Lockett”) appeals, pro se, from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On November 20, 2007, Lockett pled guilty to one count of firearms

not to be carried without a license and was sentenced to 9 to 18 months in

prison, with a consecutive term of 5 years of probation. Due to time served,

Lockett was released on December 21, 2007, after serving 8 months and 27

days.

        On January 13, 2011, following a probation violation, the trial court

sentenced Lockett to 3 to 6 years in prison with credit for time served.

Lockett filed a Motion to Reconsider Sentence, which the trial court denied.

        Lockett filed a timely Notice of Appeal, which he discontinued on March

16, 2011.     In the interim, Lockett filed a “Petition for Application of Time
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Credit” on February 23, 2011.        The court treated the Petition as a PCRA

Petition and subsequently issued a Notice of Intent to Dismiss. Thereafter,

the PCRA court dismissed the Petition. Lockett did not appeal.1

        On April 20, 2015, Lockett filed a pro se Motion for Writ of Coram

Nobis. Lockett then filed a pro se PCRA Petition on May 1, 2015. The PCRA

Court considered these filings, along with two other pro se Motions, to be a

second PCRA Petition.2

        The PCRA court provided a Pa.R.Crim.P. 907 Notice of Intent to

Dismiss. Lockett filed a Response to the Rule 907 Notice, after which the

PCRA Court dismissed the Petition. Lockett then filed the instant Notice of

Appeal.

              We review an order dismissing a petition under the PCRA
        in the light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court’s
        ruling if it is supported by evidence of record and is free of legal
        error. This Court may affirm a PCRA court’s decision on any
        grounds if the record supports it. Further, we grant great
        deference to the factual findings of the PCRA court and will not
        disturb those findings unless they have no support in the record.
        However, we afford no such deference to its legal conclusions.


1
    Lockett was counseled up to this point of the proceedings.
2
  See 42 Pa.C.S.A. § 9542 (providing that “[t]he action established in this
subchapter shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exists when this subchapter takes effect, including habeas
corpus and coram nobis”); see also id. § 9543(a)(2) (stating that collateral
relief from an illegal sentence may be obtained under the PCRA);
Commonwealth v. Pagan, 864 A.2d 1231, 1232-33 (Pa. Super. 2004)
(treating a writ of coram nobis as a PCRA petition).

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     Where the petitioner raises questions of law, our standard of
     review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     Under the PCRA, a defendant must file any PCRA petition within one

year of the date that the judgment becomes final.           42 Pa.C.S.A.

§ 9545(b)(1). A judgment of sentence 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 the expiration of

time for seeking review.”    Id. § 9545(b)(3).     The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

     In the present case, Lockett’s second PCRA Petition is based on the

sentence he received on January 13, 2011; following the revocation of his

probation, this is the operative date when examining timeliness under the

PCRA.   See Commonwealth v. Anderson, 788 A.2d 1019, 1021 (Pa.

Super. 2001) (stating that, where a new sentence is imposed at a probation

revocation hearing, the PCRA’s purpose requires employment of the

revocation hearing date). Lockett discontinued his appeal of that sentence

on March 16, 2011, thereby rendering his judgment of sentence final. See

Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. 2008).




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Accordingly, Lockett had until March 16, 2012, to file a timely PCRA Petition.

Thus, the instant April 20, 2015 Petition is facially untimely under the PCRA.

      The PCRA, however, provides three exceptions to the one-year time

limitation: (1) the failure to raise the claim was the result of government

interference; (2) the facts of the new claim were unknown to the petitioner

and could not have been discovered with due diligence; (3) the right

asserted is a constitutional right recognized by the United States Supreme

Court or the Pennsylvania Supreme Court after the time period provided in

the section and has been held to apply retroactively.            42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Any PCRA petition invoking one of these exceptions must

be filed within sixty days of the date the claim could have been presented.

Id. § 9545(b)(2).

      Lockett does not invoke any of the timeliness exceptions in his

Petition; therefore, he did not properly preserve the exceptions.         See

Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (stating

that issues not raised in a PCRA Petition will not be considered on appeal);

see also Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005)

(stating that “it is the burden of a petitioner to plead in the PCRA petition

exceptions to the time bar[,] and that burden necessarily entails an

acknowledgment by the petitioner that the PCRA petition under review is

untimely but that one or more of the exceptions apply”). In his Response to

the Rule 907 Notice of Intent to Dismiss, Lockett raises the governmental



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interference      and   newly-discovered       evidence    timeliness     exceptions.

However, the fact that Lockett raises these claims for the first time in reply

to the PCRA court’s Notice of Intent to Dismiss does not preserve the

exceptions for review. See Commonwealth v. Derrickson, 923 A.2d 466,

469 (Pa. Super. 2007) (stating that “if, after he received the PCRA court’s

notice of its intent to dismiss, [a]ppellant desired to properly allege any of

the exceptions enumerated under 42 Pa.C.S.A. § 9545(b)(1), then he should

have sought leave to amend his petition in order to present such

allegations.”).

      Because      Lockett   failed   to   properly   preserve   the    governmental

interference and newly-discovered evidence exceptions to the PCRA’s time

bar, we cannot address his PCRA Petition.3             Further, because Lockett’s

Petition is untimely, we cannot review the merits of his claim regarding the

legality of his sentence. See Commonwealth v. Miller, 102 A.3d 988, 995


3
  Even if properly preserved, Lockett’s timeliness exception claims would
have failed. His assertion that ineffective assistance of counsel constitutes
governmental interference is contrary to settled law. See Commonwealth
v. Pursell, 749 A.2d 911, 916 (Pa. 2000) (stating that “claims relating to
ineffectiveness of counsel for failing to raise certain issues do not qualify [for
the timeliness exception] due to the specific provision in 42 [Pa.C.S.A.]
§ 9545(b)(4) that the term ‘government officials’ does not include defense
counsel.”); see also Wharton, 886 A.2d at 1127 (stating that “allegations
of ineffective assistance of counsel will not overcome the jurisdictional
timeliness requirements of the PCRA.”). Additionally, his newly-discovered
evidence claim is based on not knowing that he may have a potential claim
regarding his sentence. However, Lockett has not demonstrated that this
constituted newly-discovered evidence.             Further, Lockett has not
demonstrated that he exercised due diligence by raising this claim within 60
days of when he discovered it.

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(Pa. Super. 2014) (stating that “in order for this Court to review a legality of

sentence claim, there must be a basis for our jurisdiction to engage in such

review.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2016




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