J-S93022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NAHBEEL RICHARDSON

                            Appellant                No. 3567 EDA 2015


              Appeal from the PCRA Order dated October 28, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012190-2008


BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                            FILED MARCH 20, 2017

        Appellant Nahbeel Richardson appeals pro se from the order dismissing

his second petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. The PCRA court dismissed Appellant’s petition as

untimely, and we affirm.

        The procedural posture is as follows:

              On March 2, 2010, [A]ppellant was found guilty following a
        jury trial of Involuntary Deviate Sexual Intercourse, Unlawful
        Contact with a Minor, Corruption of Minors, and Indecent
        Assault.[1] Sentencing was scheduled for August 30, 2010. On
        that date[,] Appellant was sentenced to an aggregate
        incarceration sentence of ten (10) to twenty (20) years followed
        by a probation term of two (2) years.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   18 Pa.C.S. §§ 3123(a)(1), 6318(a)(1) 6301(a)(1), and 3126(a)(2),
respectively.
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             Appellant filed a timely direct appeal on September 13,
       2010.[2] [The] Superior Court affirmed the trial court’s decision
       on April 5, 2012.[3] Appellant did not file a petition [for review]
       with the Supreme Court.

             On July 23, 2012, [A]ppellant filed a pro se Post-Conviction
       Relief Act Petition.[4] He then filed an amended petition on
       May 21, 2013.[5] PCRA counsel was appointed to represent
       [A]ppellant and subsequently filed a “Finley” letter on November
       13, 2013[,] stating that Appellant’s claims in the PCRA petition
       were without merit.[6] A Notice of Intent to Dismiss pursuant to
       Pa.R.Crim.P.[] 907 was sent to Appellant on December 31,


____________________________________________


2
  Appellant’s direct appeal claimed that the trial court abused its discretion
by admitting the victim’s prior consistent statement. Commonwealth v.
Richardson, 2603 EDA 2010 (Pa. Super., April 5, 2012) (unpublished mem.
at 2).
3
 We held that Appellant had waived the issue by failing to object at trial.
Richardson, 2603 EDA 2010 at 3.
4
 Appellant’s first PCRA petition was timely, as it was filed within one year of
May 5, 2012, the date his judgment of sentence became final. See 42
Pa.C.S. § 9545(b)(1), (3); Pa.R.A.P. 1113.
5
  In his first PCRA petition, Appellant claimed that his trial counsel was
ineffective for failing to preserve the issue he raised on direct appeal, and
also for failing to impeach the victim, to make an argument based on DNA
evidence found at the scene, and to call other witnesses at trial.
6
  Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),
requires PCRA counsel wishing to withdraw to issue a “no-merit” letter to the
petitioner listing each claim the petitioner wishes to have reviewed,
describing the extent to which those claims were reviewed, and explaining
why the petitioner's issues are meritless. The Finley letter must be attached
to counsel’s petition to withdraw, which must also include a statement
advising the petitioner that, in the event the trial court grants the application
of counsel to withdraw, the petitioner has the right to proceed pro se, or
with the assistance of privately retained counsel.



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        2013.[7] The PCRA petition was formally dismissed on March 25,
        2014.[8] Appellant did not file a direct appeal to this order.

               On March 20, 2015[,] Appellant filed a second PCRA
        petition. This petition was dismissed as untimely on October 28,
        2015.[9] Appellant filed a timely direct appeal on November 17,
        2015.[10]


PCRA Ct. Op., 6/3/16, at 1-2 (some italicization and footnotes omitted;

formatting added).

        Appellant presents the following issues for our review:

        1.) Did the P.C.R.A. court commit an error in regards to denying
        and/or dismissing Appellant[’]s initial P.C.R.A. and not issuing an
        order stating such?
____________________________________________


7
    A copy of this notice does not appear in the record.
8
  The order issued by the court did not specify that Appellant had thirty days
in which to appeal the dismissal, which was required pursuant to
Pa.R.Crim.P. 907(4). Rule 907 also required that a copy of the order be sent
to Appellant by certified mail, return receipt requested, see id., but it is
unclear from the record whether the order was mailed in that way. As
discussed below, Appellant now claims that he learned of the dismissal a few
weeks after it was entered, through documents he received from the court in
response to a request he made for a status sheet.
9
   The PCRA court issued a Rule 907 notice of intent to dismiss on October 6,
2015. The order was addressed to Appellant at the state correctional
institution where he was incarcerated. It stated, “Your petition is untimely
filed and does not invoke an exception to the timeliness provision of the Post
Conviction [R]elief Act.” Order, 10/6/15. It was accompanied by a Proof of
Service signed by the law clerk for the PCRA court judge, and indicated that
it was sent to Appellant via first class mail. According to the docket,
Appellant filed no response to the Rule 907 notice.
10
   Appellant was not ordered by the PCRA court to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal; however, Appellant filed one
pro se concurrently with his Notice of Appeal.



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      2.) Did the P.C.R.A. court err[] in denying Appellant[’]s
      second/subsequent P.C.R.A. without initially ordering the denial
      of the [previous petition]?

      3.) Did the P.C.R.A. court abuse it[]s discretion in dismissing the
      P.C.R.A. petition without addressing the cognizable claims for
      relief, such as:

            a.) the layered constitutional ineffective assistance of
            counsel, U.S.C.A. 6th Amendment, per trial, direct appeal
            and initial P.C.R.A. court-appointed counsel.

            b.) Appellant[’]s trial counsel labored to an impartial jury,
            creating a conflict of interest which is in direct violation
            with Appellant[’]s 6th Amendment[] right[] to properly
            present a prima facie case in establishing actual innocence.

            c.) In regards to the U.S.C.A. 6th Amendment,
            Appellant[’s] trial counsel rendered constitutionally
            ineffective in their failure to act in due diligence in not
            properly preserving issues to be raised on Appellant[’s]
            direct appeal – a miscarriage of justice, which violates due
            process, U.S.C.A. 5th, 7th, and 14th Amendments.

            d.) Appellant[’]s sentence, which was instituted solely on
            the nature of the crime, the age of the complainant and
            not the factual basis of the Appellant[’s] trial, which is
            clearly unreasonable.

            e.) Appellant[’]s Commonwealth, federal and constitutional
            rights ha[ve] been disregarded in their entirety by
            subjecting the Appellant to a lifetime registration under
            Megan[’s] law.

Appellant’s Brief at 4.

      Our standard of review of the dismissal of a PCRA petition is as

follows:

             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

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     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. 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).

     We begin our review with the timeliness of Appellant’s petition, as the

timeliness   of   a   PCRA   petition   is   jurisdictional.   Commonwealth   v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). When a petition is

untimely, the PCRA court is precluded from reaching the merits of the

petition. Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014).

     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

becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment is deemed 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. § 9545(b)(3). An

appellant has thirty days after a decision of this Court to request review by

the Supreme Court of Pennsylvania. Pa.R.A.P. 1113.

     Here, this Court affirmed the trial court’s decision on Appellant’s direct

appeal from his sentence on April 5, 2012. Appellant’s judgment of sentence


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therefore became final thirty-two days later, on Monday, May 7, 2012,11 and

Appellant had one year, until May 7, 2013, to file a timely PCRA petition.

Appellant did not file the instant petition, his second, until March 20, 2015; it

is therefore untimely.

       However, exceptions to the time-bar apply when the petition alleges

and the petitioner proves one of the following:

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

statutory exceptions “must be filed within sixty days of the date the claim

could first have been presented.” Hernandez, 79 A.3d at 651-52; see also

42 Pa.C.S. § 9545(b)(2).



____________________________________________


11
   See generally 1 Pa.C.S. § 1908 (“Whenever the last day of any such
period shall fall on Saturday or Sunday, or on any day made a legal holiday
by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation”).



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     “The PCRA squarely places upon the petitioner the burden of proving

an   untimely   petition   fits   within   one   of   the   three   exceptions.”

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012). Generally, a claim of

ineffectiveness does not constitute a “fact” for purposes of the timeliness

exception allowed by 42 Pa.C.S. § 9545 (b)(1)(ii). See Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 785-86 (Pa. 2000). Asserted exceptions to

the time restrictions in the PCRA must be included in the petition and may

not be raised for the first time on appeal. Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007), appeal denied, 959 A.2d 927 (Pa. 2008).

     Here, the trial court found:

           Appellant’s current PCRA petition is clearly untimely as it
     was filed one (1) year and ten (10) months after the deadline
     stated above. Additionally he does not plead in his petition any
     exception to the timeliness requirements. This court does not
     find any possible exception to the timeliness requirements. In
     Appellant’s second PCRA petition[,] he merely reargues the
     merits of his first PCRA petition, which in turn were disposed of
     in his direct appeal by [the] Superior Court. Therefore []
     Appellant’s second PCRA petition does not meet any of the
     exceptions to the timeliness requirement and should be
     dismissed.

PCRA Ct. Op. at 2-3.

     We agree with the PCRA court that Appellant failed to successfully

plead an exception to the PCRA’s time-bar. In his petition, Appellant checked

the boxes indicating that his petition is timely based on the exceptions

provided by Section 9545(b)(1)(ii) (previously unknown facts) and (iii)

(newly recognized constitutional right); but he provided no explanation for


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how these exceptions apply to his case. In the Memorandum of Law

accompanying the petition, Appellant made no mention of the timeliness

requirements at all.

       Along with the petition and memorandum, Appellant filed a document

entitled, “Petitioner’s Memorandum of Law Supporting Motion to Amend

Pending Motion for Post Conviction Relief.” In it, Appellant requested leave

to amend his first PCRA petition (filed on July 23, 2012). He made this

request based on his having filed an improper form,12 with an improper

caption,13 and an improper title.14 We note that none of these alleged errors

was the basis of the dismissal of his first PCRA petition, and that Appellant

was aware that his first petition had been dismissed. We therefore see no

reason why the PCRA court would have or could have disturbed the

disposition of his first petition based on this document. More importantly,

this document did not mention the PCRA’s timeliness requirements or make

any attempt to justify the delay in filing his second PCRA petition. It claimed

only that amendments to PCRA petitions are liberally allowed (citing

____________________________________________


12
  Appellant alleged he improperly used a form styled by the Department of
Corrections rather than by a Court of Common Pleas.
13
   Appellant claimed he incorrectly listed the Commonwealth as plaintiff on
his first PCRA petition.
14
   Appellant stated that his first PCRA petition did not cite the statutes
providing for post-conviction relief, 42 Pa.C.S. §§ 9541-9546.




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Commonwealth v. Dennis, 950 A.2d 945, 959 n.11 (Pa. 2008)), and that

the pleadings of pro se litigants should be liberally construed (citing Haines

v. Kerner, 404 U.S. 519 (1972)). This filing therefore has no bearing on the

untimeliness of Appellant’s second PCRA petition.

       In his brief on this appeal, Appellant makes a new effort to assert that

his second petition is timely. See Appellant’s Br. at 9-10. He claims that he

did not receive notice that his first PCRA petition had been dismissed until

April 7, 2014, after he requested a status sheet from the Philadelphia Clerk

of Courts. Id. at 5.15 Because he claims he did not receive proper notice of

the dismissal pursuant to Rule 114 of the Rules of Criminal Procedure,

Appellant requests that his first petition be reinstated and his second petition

be treated as an amended version of the first. Id. at 10. Appellant also

claims, for the first time on appeal, that the court-appointed counsel on his

first PCRA petition provided ineffective assistance. Id. at 13.16


____________________________________________


15
    Appellant appends to his brief a copy of the letter he sent to the PCRA
court on March 31, 2014, requesting a copy of his “status sheet” and the
docket. It is stamped as “Received, April 03, 2014, Clerk of Court,” and
followed by portions of Appellant’s docket sheet which were printed on April
3, 2014, and March 27, 2015. This correspondence between Appellant and
the PCRA court is not in the certified record.
16
   Appellant states: “court-appointed PCRA Counsel . . . failed to amend
Appellant[’s] initial PCRA petition upon Appellant[’s] request via nunc pro
tunc requesting the reinstatement of Appellant[’s] direct appella[te] rights.”
Appellant’s Br. at 13 (capitalization omitted).




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       Appellant is not entitled to relief for two reasons. First, Appellant was

obligated to plead and prove an exception to the timeliness requirements

when he was before the PCRA court. Appellant’s second PCRA petition did

not plead and prove his lack of notice of the dismissal of his first PCRA

petition, and Appellant cannot rectify this fact by now including this

information in a new argument to this Court. See Burton, 936 A.2d at 525

(asserted exceptions to the time restrictions in the PCRA must be included in

the petition and may not be raised for the first time on appeal).

       Second, Appellant has failed to state a claim within any of the three

timeliness exceptions under Section 9545(b)(1).17 His argument seems to

fall most closely within the purview of § 9545(b)(1)(ii), which provides an

exception for “facts” which were unknown to the petitioner and could not

have been ascertained by the exercise of due diligence. Here, the alleged

unknown fact is the PCRA court’s dismissal of Appellant’s first petition. We

recognize that a prisoner’s failure to receive a court order can sometimes

make entry of that order an unknown fact. See, e.g., Commonwealth v.

Bennett, 930 A.2d 1264, 1272-74 (Pa. 2007) (finding that failure to receive

notice that an appeal has been dismissed is a “fact” under § 9545(b)(1)(ii);

stating that it should not be presumed that a prisoner is always aware of the
____________________________________________


17
  Appellant’s brief cites Section 9545(b)(2). This subsection pertains to each
of the three timeliness exceptions of Section 9545(b)(1)(i)-(iii); Appellant
does not specify which of those three exceptions applies to his case.




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status of his own case, albeit a matter of public record; and holding that a

petition is timely when filed within sixty days of diligent discovery of

complete deprivation of appellate rights). Here, however, Appellant says that

he learned of the dismissal on April 7, 2014, less than two weeks after entry

of the dismissal order. Appellant nonetheless waited until March 20, 2015,

to file his second petition. He therefore missed the sixty-day window of

Section 9545(b)(2) by the better part of a year. This lack of diligence on

Appellant’s part in filing his second petition makes that petition untimely. It

also does not warrant reinstatement of his right to appeal the dismissal of

his first petition.

      Because Appellant failed to plead and prove any exception to the time-

bar for his second PCRA petition, we agree with the PCRA court that it lacked

jurisdiction to entertain the merits of the petition. See Lawson, 90 A.3d at

4 (stating a PCRA court lacks jurisdiction to consider an untimely petition);

Jones, 54 A.3d at 17 (noting it is a petitioner’s burden to prove a timeliness

exception). Accordingly, we affirm the order below.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017

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