J-S45020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                               :           PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MITCHELL WILLIAMS,                         :
                                               :
                        Appellant              :      No. 1610 EDA 2018

                   Appeal from the PCRA Order April 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001812-2009


BEFORE:       BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                    FILED AUGUST 16, 2019

        Mitchell Williams (Appellant) appeals pro se from the order denying as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because we agree with the PCRA court

that Appellant’s petition is untimely, we affirm.

        On September 17, 2010, a jury convicted Appellant of robbery, criminal

conspiracy, firearms not to be carried without a license, and possessing an

instrument of crime. On April 15, 2011, the trial court sentenced Appellant to

an aggregate 10 to 20 years of incarceration. Appellant filed a timely post-

sentence motion, which the trial court denied on May 3, 2011. Appellant filed

a    direct   appeal.     This    Court    affirmed    the    judgment   of   sentence.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. Williams, 62 A.3d 447 (Pa. Super. Oct. 2, 2012)

(unpublished memorandum). Appellant petitioned for allowance of appeal,

which    the   Pennsylvania      Supreme       Court   denied   on   April   17,   2013.

Commonwealth v. Williams, 64 A.3d 632 (Pa. 2013).

        On March 24, 2014, Appellant filed his first PCRA petition. The PCRA

court appointed counsel, who filed a Turner/Finley1 no-merit letter and

motion to withdraw as counsel on July 16, 2015. The PCRA court issued notice

of its intent to dismiss the petition pursuant to Pennsylvania Rule of Criminal

Procedure 907 on September 30, 2015. The PCRA court dismissed the petition

on November 5, 2015, and granted counsel’s request to withdraw from

representation. Appellant filed an appeal on December 1, 2015. This Court

dismissed the appeal on August 17, 2016 because Appellant did not file a brief.

        On January 29, 2018, Appellant filed the underlying pro se PCRA

petition, his second. On April 4, 2018, the PCRA court issued Rule 907 notice.

The court dismissed the petition on April 24, 2018.         The docket indicates that

Appellant filed a notice of appeal on May 29, 2018; the appeal is timely

because the envelope in which the notice of appeal was mailed bears an




____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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“INMATE MAIL DEPARTMENT OF CORRECTIONS” date stamp of May 23, 2018.2

Both the PCRA court and Appellant have complied with Pa.R.A.P. 1925.

       On appeal, Appellant presents three issues:

       1. Whether the PCRA Court erred in failing to comply with
          Pennsylvania Rule of Criminal Procedure 907(1)?

       2. Whether the PCRA Court erred in holding that [Appellant] failed
          to satisfy the requirements for filing a second or subsequent
          PCRA petition?

       3. Whether the PCRA Court erred in holding that [Appellant] failed
          to allege that he satisfied the requirements to establish an
          exception to the time-bar?

Appellant’s Brief at 4.

       Consistent with the foregoing, we must determine whether we have

jurisdiction to decide Appellant’s claims. “Pennsylvania law makes clear no

court has jurisdiction to hear an untimely PCRA petition.” Commonwealth

v.   Monaco,       996    A.2d    1076,        1079   (Pa.   Super.   2010)   (quoting

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

       A petitioner must file a PCRA petition within one year of the date on

which the petitioner’s judgment became final, unless one of the three

statutory exceptions applies:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
____________________________________________


2 Pennsylvania Rule of Appellate Procedure 121(a), also known as the
“Prisoner Mailbox Rule”, provides that “[a] pro se filing submitted by a prisoner
incarcerated in a correctional facility is deemed filed as of the date it is
delivered to the prison authorities [,] ... as evidenced by a properly executed
prisoner cash slip or other reasonably verifiable evidence of the date that the
prisoner deposited the pro se filing with the prison authorities.”

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       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). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).3 If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       As noted above, the trial court sentenced Appellant on April 15, 2011,

and    this   Court    affirmed    Appellant’s   judgment   of   sentence.      See

Commonwealth v. Williams, 62 A.3d 447 (Pa. Super. Oct. 2, 2012)

(unpublished memorandum). On April 17, 2013, the Pennsylvania Supreme


____________________________________________


3 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and now provides that a PCRA petition invoking a timeliness exception
be filed within one year of the date the claim could have been presented; the
prior law required that the petition be filed within 60 days. The amendment
applies to Appellant, who filed his petition on January 29, 2018.


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Court denied Appellant’s petition for allowance of appeal. Commonwealth

v. Williams, 64 A.3d 632 (Pa. 2013).         Appellant did not seek a writ of

certiorari with the United States Supreme Court. Thus, Appellant’s judgment

of sentence became final on July 16, 2013, when the 90 day period for

Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A. §

9545(b)(3) (stating, “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 time

for seeking the review[ ]”); U.S. Sup. Ct. R. 13(1) (stating “a petition for a

writ of certiorari to review a judgment in any case ... is timely when it is filed

with the Clerk of this Court within 90 days after entry of the judgment[ ]”).

      Appellant’s underlying PCRA petition, which he filed on January 29,

2018, is therefore untimely, and we lack jurisdiction unless he has pled and

proved one of the three timeliness exceptions of section 9545(b)(1).         See

Derrickson, 923 A.2d at 468.

      Appellant asserts that he qualifies for an exception to the time bar under

§ 9545(b)(1)(ii). See Appellant’s Brief at 10. He argues:

      The “new facts” were based on a letter by [Appellant’s] trial
      attorney explaining his strategy and demonstrating a failure to
      execute that strategy. [Appellant] exercised due diligence in
      obtaining those facts and they were presented within [the time
      prescribed by the statute for] obtaining them. The order of the
      PCRA court is not supported by the record and is not free from
      legal error.

Id.


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      We have explained:

      The newly-discovered fact exception has two components, which
      must be alleged and proved.        Namely, the petitioner must
      establish that: 1) the facts upon which the claim was predicated
      were unknown 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, 141 A.3d 491, 500 (Pa. Super. 2016), citing

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).

      The “new facts” to which Appellant refers implicate the effectiveness of

trial counsel. To prevail on a claim of ineffective assistance of counsel under

the PCRA, a petitioner must plead and prove by a preponderance of the

evidence that counsel’s ineffectiveness “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S.A. § 9543(a)(2)(ii). Specifically, a petitioner must establish

that “the underlying claim has arguable merit; second, that counsel had no

reasonable basis for his action or inaction; and third, that Appellant was

prejudiced.”   Commonwealth v. Charleston, 94 A.3d 1012, 1020 (Pa.

Super. 2014). “A petitioner establishes prejudice when he demonstrates that

there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Commonwealth v.

Johnson, 966 A.2d 523, 533 (Pa. 2009) (citations omitted).

      Further, counsel “is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Commonwealth v.


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Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011). It is well settled that “counsel

cannot be held ineffective for failing to pursue a meritless claim[.]”

Commonwealth v. Hall, 867 A.2d 619, 632 (Pa. Super. 2005).

     Instantly, in support of his “newly discovered evidence” of trial counsel’s

ineffectiveness, Appellant attached to his PCRA petition four exhibits,

consisting of two letters he wrote to trial counsel, and trial counsel’s two

letters in response, which were written between April and November of 2017.

See PCRA Petition, 1/29/18, Exhibits A-D. Appellant states, “trial counsel’s

letter does reveal ‘new facts.’ Trial counsel was clearly responding to, and

addressing, matters that he believed were not previously discussed with

[Appellant]. His responses, and the statements themselves, reveal the degree

of trial counsel’s lack of preparation and failure to develop a ‘sound trial

strategy.’” Appellant’s Brief at 19-20. We are not persuaded by Appellant’s

claim.

     The PCRA court succinctly and accurately explained:

     [Appellant] assert[s] that his receipt of a letter from trial counsel,
     Francis Carmen, Esq., of the Defender Association of Philadelphia,
     dated November 28, 2017, raised facts that were previously
     unknown to [Appellant], thus exempting [Appellant] from the time
     bar pursuant to 42 Pa.C.S.A. § 9543(b)(2)(ii). Mr. Carmen’s
     response, which addressed [Appellant]’s questions regarding trial
     strategy following a series of conversations, stated that “the
     overall strategy is exactly what we agreed it would be . . .” He
     then reviewed the various concerns raised by [Appellant].
     [Appellant] first contacted Mr. Carmen concerning trial strategy
     on April 11, 2017, well after his first PCRA appeal was dismissed
     by our Superior Court. Although [Appellant] asserts that his
     knowledge of Counsel’s trial strategy is new information, it is clear
     that both [Appellant] and Mr. Carmen had discussed the trial

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         strategy at length, prior to trial. [Appellant] cannot now claim
         that these “facts were unknown to him and that he exercised due
         diligence in discovering those facts.”

PCRA Court Opinion, 8/14/18, at 6.

         Upon review, we agree with the PCRA court. Thus, as Appellant has

failed to plead and prove an exception under § 9545(b)(1), we are without

jurisdiction to address the merits of his appeal. We therefore affirm the PCRA

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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