J-S44028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

ELDON CHICK

                          Appellant                    No. 2381 EDA 2015


             Appeal from the PCRA Order entered July 16, 2015
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0403371-2005


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED AUGUST 24, 2016

      Appellant, Eldon Chick, appeals from the July 16, 2015 order entered

in the Court of Common Pleas of Philadelphia County, denying as untimely

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.

      The facts as gleaned from the record reveal that Appellant was

arrested on February 13, 2005 when officers responding to a report of a

domestic disturbance stopped Appellant’s vehicle and noticed a rifle and

silver handgun in the car. Appellant was charged with various violations of

the firearms act (“VUFA”), including persons not to possess, carrying
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firearms without a license (“VUFA 6106”), and carrying firearms on the

public streets of Philadelphia.1

        Subsequent examination of Appellant’s handgun by the Firearms

Identification Unit of the Philadelphia Police Department determined that the

gun matched a bullet recovered on December 29, 2004 at Temple University

Hospital from the pelvic bone of Terry Flores (“Flores”).       On February 25,

2005, Appellant was charged at a separate criminal docket number with

attempted murder, aggravated assault, VUFA 6106, and possession of an

instrument of crime (“PIC”) in relation to the December 29, 2004 shooting of

Flores (“the Flores prosecution”).2

        With regard to the VUFA charges stemming from the February 2005

traffic stop, Appellant appeared for a non-jury trial on November 10, 2005

and was found guilty of all charges.             On February 16, 2006, he was

sentenced to 11-1/2 to 23 months in prison plus three years’ probation as a

person not to possess.           No additional sentence was imposed for the

remaining charges. Appellant filed a PCRA petition, which was dismissed on

October 22, 2009.        In May 2010, Appellant filed a second PCRA petition

seeking leave to appeal nunc pro tunc. By order entered May 20, 2011, the

PCRA court denied Appellant’s petition.          Appellant filed a pro se appeal
____________________________________________


1
    18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
2
    18 Pa.C.S.A. §§ 901(a), 2502, 2702, 6106, and 907, respectively.




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docketed at 1684 EDA 2011, but later sought to discontinue the appeal by

filing an application for discontinuance.     In his application, Appellant

acknowledged his “ineffectiveness claims are not sufficient to warrant

reversal of the instant conviction. Based upon this conclusion, Appellant has

decided to proceed to federal habeas corpus review of his Fourth

Amendment challenge to the warrantless stop and search of his vehicle by

Philadelphia Police.”   Application to Discontinue Appeal, 8/3/11, at 1.   By

Order entered August 29, 2011, this Court granted the application and

dismissed the appeal.

      With respect to the Flores prosecution, a jury trial was held from

September 14 through 20, 2006.          On September 20, the jury found

Appellant guilty of aggravated assault, VUFA 6106, and PIC.        The court

imposed consecutive state sentences totaling 130 to 300 months in prison,

including 23 to 60 months for VUFA 6106. In June 2007, Appellant filed a

pro se PCRA petition that resulted in restoration of his direct appeal rights

nunc pro tunc.    This Court affirmed Appellant’s judgment of sentence on

August 17, 2009. Our Supreme Court denied his petition for allowance of

appeal on February 2, 2010.

      More than eighteen months later, on August 22, 2011, Appellant filed

a pro se PCRA petition alleging ineffectiveness of counsel for failing to seek

dismissal of the VUFA 6106 charge in the Flores prosecution, claiming his

second VUFA 6106 conviction resulted in a violation of the double jeopardy


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clause of the U.S. Constitution and 18 Pa.C.S.A. § 110(1)(ii). 3 Counsel was

appointed on July 25, 2012 and filed an amended petition on December 3,

2013, again alleging trial counsel was ineffective for failing to file a motion to

dismiss Appellant’s VUFA 6106 charge. Appellant further argued his petition

was timely because direct appeal counsel failed to advise him of the

Supreme Court’s denial of his petition for allowance of appeal. He claimed

he filed his PCRA petition with 60 days of learning of the Supreme Court’s

action.

        On October 9, 2014, the Commonwealth filed a motion to dismiss the

petition.    On June 12, 2015, the PCRA court issued a notice pursuant to

Pa.R.Crim.P. 907, advising Appellant of the court’s intent to dismiss the
____________________________________________


3
    18 Pa.C.S.A. § 110(1)(ii) provides, in relevant part:

        Although a prosecution is for a violation of a different provision
        of the statutes than a former prosecution or is based on different
        facts, it is barred by such former prosecution under the following
        circumstances:

            (1) The former prosecution resulted in . . . a conviction . . .
            and the subsequent prosecution is for:

              ....

               (ii) any offense based on the same conduct or arising
               from the same criminal episode, if such offense was
               known to the appropriate prosecuting officer at the
               time of the commencement of the first trial and
               occurred within the same judicial district as the
               former prosecution unless the court ordered a
               separate trial of the charge of such offense[.]




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petition as untimely and lacking merit. Appellant did not file a response. By

order entered July 16, 2015, the PCRA court dismissed Appellant’s petition

as untimely and lacking merit “after independent review of [Appellant’s] pro

se petition, PCRA counsel’s amended petition, and the Commonwealth’s

motion to dismiss.” PCRA Court Rule 1925(a) Opinion, 10/29/15, at 3. This

timely appeal followed.   Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      In this appeal, Appellant presents two issues for our review:

      I.    Whether the [J]udge was in error in denying the
            Appellant’s PCRA petition without an evidentiary hearing
            on the issues raised in the amended PCRA petition
            regarding trial counsel’s ineffectiveness.

      II.   Whether the Judge was in error in not granting relief on
            the PCRA petition alleging counsel was ineffective.

Appellant’s Brief at 8. In his Rule 1925(b) statement, Appellant presented

two subparts to his second issue, i.e., that trial counsel was ineffective for

failing to file a motion to dismiss the firearm charge [in the Flores

prosecution] and that the PCRA petition was timely filed.

      In Commonwealth v. Johnston, 42 A.3d 1120 (Pa. Super. 2012),

this Court reiterated:

      [T]he standard of review for review of an order denying a PCRA
      petition is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Commonwealth v. Ragan, 592 Pa. 217, 923 A.2d 1169, 1170
      (2007). The PCRA court’s findings will not be disturbed unless
      there is no support for the findings in the certified record.
      Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
      2001).

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Id. at 1126.

     As this Court explained in Johnston:

     As a threshold jurisdictional matter, however, the timeliness of
     the PCRA petition must be addressed. 42 Pa.C.S. § 9545(b) sets
     forth the time limitations for filing of a PCRA petition as follows:

        (b) Time for filing petition.—

           (1) Any petition under this subchapter, including a
           second or subsequent petition, shall be filed within
           one year of the date the judgment becomes final,
           unless the petition alleges and the petitioner proves
           that:

               (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.

           (2) Any petition invoking an exception provided in
           paragraph (1) shall be filed within 60 days of the
           date the claim could have been presented.

     42 Pa.C.S. § 9545(b)(1)-(2).

     Petitioners must plead and prove the applicability of one of the
     three    exceptions  to   the   PCRA   timing      requirements.

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      Commonwealth v. Perrin, 947 A.2d 1284 (Pa. Super. 2008);
      Commonwealth v. Geer, 936 A.2d 1075, 1078–1079 (Pa.
      Super. 2007). “If the petition is determined to be untimely, and
      no exception has been pled and proven, the petition must be
      dismissed without a hearing because Pennsylvania courts are
      without jurisdiction to consider the merits of the petition.”
      Perrin, 947 A.2d at 1285.

Id.   See also Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68

(Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional in nature

and must be strictly construed; courts may not address the merits of the

issues raised in a petition if it is not timely filed.”).

      The Supreme Court denied Appellant’s petition for allowance of appeal

on February 12, 2010. Therefore, his judgment of sentence became final 90

days later, on May 13, 2010, the deadline for filing a writ of certiorari with

the United States Supreme Court. U.S.Sup.Ct. Rule 13. In accordance with

§ 9545(b)(1) and absent any applicable exception, Appellant’s deadline for

filing his PCRA petition was May 13, 2011.          Appellant filed his petition on

August 22, 2011, more than three months beyond the deadline.

      Appellant argues that his petition is saved from the PCRA’s time bar by

a “newly discovered fact” qualifying as an exception under § 9545(b)(1)(ii).

He asserts that neither his direct appeal counsel nor the Supreme Court

advised him that his petition for allowance of appeal was denied on February

12, 2010.      He contends he wrote to the Supreme Court Prothonotary

inquiring about the status of his petition and, in response, received a letter

dated July 5, 2011 with a copy of the docket reflecting the February 2010


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denial of the petition. He complains that his counsel’s failure to notify him of

the denial constitutes “abandonment.”            Appellant’s Brief at 27 (citing

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007)). He suggests that

his August 22, 2011 PCRA petition was filed within 60 days of learning of the

“newly discovered fact” of the Supreme Court’s denial of his petition for

allowance of appeal, satisfying the requirement of § 9545(b)(2). We cannot

agree. As the PCRA recognized:

      [Appellant’s] reliance upon Bennett is misplaced and his claim is
      without merit. Unlike the petitioner in Bennett, who promptly
      wrote to the PCRA court and the Superior Court but did not find
      out that his appeal had been dismissed until two months
      afterwards, [Appellant] did not exercise due diligence in
      ascertaining the status of the appeal. In the instant case,
      [Appellant] offered no evidence that he promptly wrote to
      appellate counsel, the Supreme Court Prothonotary or anyone
      else about the status of his appeal and, tellingly, he did not learn
      about the denial of his appeal until July 5, 2011, more than 15
      months after it was denied. Thus, [Appellant] did not exercise
      due diligence in ascertaining the status of his appeal and
      therefore his belated discovery that his appeal had been denied
      cannot now constitute a newly-discovered fact which would allow
      him to avoid the time-bar. Consequently, [Appellant’s] petition
      was properly dismissed as untimely.

PCRA Court Rule 1925(a) Opinion, 10/29/15, at 8-9.

      Appellant also suggests that if his “newly discovered evidence”

argument is unavailing, his petition is saved under an exception to the

timeliness requirement.      Appellant’s Brief at 29.    Appellant then identifies

the   three   exceptions    provided   in   §   9545(b)(1)(i)-(iii)   and   correctly

acknowledges that the PCRA places the burden upon Appellant to plead and

prove an exception.        Id.   However, Appellant has not indicated which

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timeliness exception might apply nor does he offer any argument in support

of proving any exception. Appellant’s alternate “theory” does not save his

untimely petition from the PCRA’s time bar.

       Because Appellant’s PCRA petition was untimely filed and because

Appellant has failed to prove that it is saved by any exception to the PCRA’s

time bar, we have no jurisdiction to consider the merits, if any, of his

petition.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




____________________________________________


4
  Even if Appellant proved an exception to the PCRA’s time bar, we would
not disturb the PCRA court’s determination that he was not entitled to relief.
As the PCRA court recognized, the VUFA 6106 charge in the Flores
prosecution was not based on the same criminal conduct or episode as the
VUFA 6106 charge stemming from the traffic stop. See PCRA Court Rule
1925(a) Opinion at 7-10 (citing Commonwealth v. Miskovitch, 64 A.3d
672, 685 (Pa. Super. 2013) (examining 18 Pa.C.S.A. § 110 and explaining
that for a subsequent prosecution to be barred on double jeopardy grounds,
all four prongs of applicable test must be met, including that the “current
prosecution was based on the same criminal conduct or arose from the same
criminal episode”).



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