J-S04044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ANGEL ANTONIO SANTOS                       :
                                               :
                      Appellant                :   No. 617 EDA 2016

                  Appeal from the PCRA Order January 27, 2016
                 In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004603-2011,
                             CP-39-CR-0005159-2011


BEFORE: SHOGAN, OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MARCH 23, 2017

        Angel Santos (“Appellant”) appeals, pro se, from the order entered by

the Court of Common Pleas of Lehigh County dismissing his second petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, as untimely. We affirm.

        On October 24, 2012, Appellant entered a negotiated guilty plea to

one count of possession with intent to deliver, and the trial court imposed a

sentence of five to ten years’ imprisonment.           Appellant filed an untimely

post-sentence motion on November 19, 2012, which the trial court denied

on January 3, 2013. Appellant filed a pro se notice of appeal on January 14,

2013, which this Court quashed as untimely on February 3, 2014.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      Therefore,   Appellant’s    judgment       of   sentence    became    final   on

November 26, 2012, when, upon the expiration of 30 days from when the

trial court entered judgment of sentence, he had filed no notice of appeal. It

follows that November 27, 2012, represented the commencement date of

Appellant’s one-year filing period under the PCRA.

      During Appellant’s one-year limitations period, he filed a patently

untimely Notice of Appeal (on January 14, 2013) and a premature PCRA

petition (on September 25, 2013, during the pendency of his direct appeal)

alleging plea counsel’s failure to file a requested direct appeal and seeking

the reinstatement of his direct appeal rights nunc pro tunc. On September

27, 2013, the PCRA court dismissed Appellant’s PCRA petition “without

prejudice” because his direct appeal was still pending before this Court. This

Court subsequently entered its order of February 3, 2014, quashing

Appellant’s direct appeal as untimely filed.              By this time, however,

Appellant’s one-year PCRA limitations period had expired at the close of

November 25, 2013.

      Nearly four months later, on March 17, 2014, Appellant filed what the

court properly construed as his first PCRA petition, discerning no prejudice in

this regard from his previously-filed premature petition.                  The Court

appointed   counsel,    who      filed   a     “no    merit   letter”   pursuant    to

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) and requested

leave to withdraw. The PCRA court granted leave and, after issuing notice to

dismiss pursuant to Pa.R.Crim.P. 907 Notice, dismissed Appellant’s appeal as

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patently untimely.      This Court affirmed on appeal.    Commonwealth v.

Santos, No. 132 EDA 2015, unpublished memorandum at 2-3 (Pa.Super.

filed    November     6,   2015)   (citing   42   Pa.C.S.A.   §     9545(b)(3);

Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008) (holding

expiration of time period for seeking direct review, and not appellate

dismissal of untimely notice of appeal filed within one-year, triggers PCRA’s

one-year limitation period)).

        On December 28, 2015, Appellant filed this, his second, PCRA petition

seeking to reinstate his direct appeal rights, nunc pro tunc, and requesting

an evidentiary hearing. On January 5, 2016, the PCRA court issued its Rule

907 Notice to Dismiss. On January 26, 2016, Appellant filed an objection to

the notice asserting that the Superior Court wrongfully found his first PCRA

petition untimely when the premature petition he filed during the pendency

of his direct appeal was filed within the PCRA’s one-year limitations period.

The court’s treatment of his petitions, he maintained, was tantamount to

governmental interference with the presentation of his claim. By its Order of

January 27, 2016, the PCRA court dismissed Appellant’s petition as untimely.

This appeal followed.

        Appellant presents the following two questions on appeal:

        I.   DID THE COURT BELOW ERR AS A MATTER OF LAW
             WHEN IT DENIED MOTIONS TO WITHDRAW GUILT
             PLEA?




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      II.   WAS APPELLANT DENIED DUE PROCESS OF LAW IN
            SUBSEQUENT POST-SENTENCE PROCEEDINGS IN
            STATE COURT?

Appellant’s brief at 6.

      On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court's findings are

supported by the record and without legal error.”        Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). “[Our] scope of

review is limited to the findings of the PCRA court and the evidence of

record, viewed in the light most favorable to the prevailing party at the

PCRA court level.”    Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.

2012) (citation omitted).

      Preliminarily, we note that we may not address Appellant’s claims

unless he filed timely his second PCRA petition, for no court has jurisdiction

to hear an untimely PCRA petition. See Commonwealth v. Monaco, 996

A.2d 1076, 1079 (Pa.Super. 2010). The PCRA provides that a petition for

relief, including a second or subsequent petition, shall be filed within one

year of the date the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A

judgment is 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) (emphasis added).

      The PCRA court may excuse a patently late filing of a PCRA petition if

the petition alleges and the petitioner proves any one of three exceptions to


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the time limitations set forth in Section 9545(b)(1) of the statute. A petition

invoking an exception to the PCRA time-bar must “be filed within 60 days of

the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      We construe Appellant’s brief to argue that his facially untimely

petition qualifies for the “government interference” exception, which applies

when the failure to raise a claim previously was due to unlawful interference

by government officials, see 42 Pa.C.S. § 9545(b)(1)(i), because plea

counsel ineffectively failed to file a requested direct appeal in a timely

manner, and the PCRA courts have erroneously denied his multiple requests

for collateral relief in the form of reinstatement of direct appellate rights

nunc pro tunc. Specifically, the sum of Appellant’s argument in this respect

is as follows:

      Appellant has filed three PCRA petitions this being his third to
      reinstate his appellate rights nunc pro tunc. The record in this
      matter clearly establishes that the appeal was quashed because
      appellate counsel Banta abandoned the case.          The factual
      circumstances supported by the record warranted the
      reinstatement of appellate rights nunc pro tunc.        [citations
      omitted]. The trial court has abused it’s [sic] discretion each
      time, denying Appellant his substantive rights as presented in
      the above. . . . The factual circumstances supported by the
      record as presented in the above and applicable Constitutional
      law demonstrate the trial court has committed plain error in
      denying Appellant reinstatement of his direct appeal rights nunc
      pro tunc and that Appellant has been denied fair process in post-
      sentencing proceeding denying Appellant’s substantial rights.

Appellant’s brief at 17-18.

      Neither his ineffective assistance of counsel claim nor his complaint

with unfavorable court orders, however, brings the present petition under


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the government interference exception.               Preliminarily, it is settled that

alleging ineffective counsel will not satisfy the requirements of the

government interference exception.           See 42 Pa.C.S. § 9545(b)(4) (“For

purposes of this subchapter, ‘governmental officials' shall not include

defense counsel, whether appointed or retained); Commonwealth v.

Crews, 863 A.2d 498, 503 (Pa. 2004) (“It is well settled that the alleged

ineffectiveness of all prior counsel, including the first PCRA counsel, does not

fall within the governmental interference exception.”).

       Moreover, the record belies Appellant’s undeveloped assertion that the

PCRA court interfered with his ability to bring an ineffective assistance of

plea counsel claim within a timely PCRA petition.              Appellant’s first PCRA

petition, though technically timely vis a vis the PCRA’s one-year limitations

period, was premature given the pendency of Appellant’s ill-fated, untimely

direct appeal.     Without jurisdiction over the petition, therefore, the PCRA

court rightly dismissed it without prejudice to file what the court would deem

a   first   PCRA   petition   once   the    direct   appeal   was   resolved.    See

Commonwealth v. Leslie, 757 A.2d 984 (Pa.Super. 2000) (holding court

should have dismissed petition without prejudice as premature given

pendency of direct appeal).

       Appellant filed a second PCRA petition, functionally his first for

purposes of review, after this Court quashed his untimely direct appeal.

Because the one-year PCRA filing period had since expired, however, it was

incumbent upon Appellant to plead and prove a Section 9545(b)(1)

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exception in the petition and to file said petition within 60 days of the date of

the order resolving his untimely direct appeal.       Cf. Commonwealth v.

Lark, 746 A.2d 585 (Pa. 2000) (holding subsequent PCRA petition, deferred

until resolution of first petition, must comply with Section 9545(b)(1) and

(2) if deferral period brought petition outside of PCRA one-year limitations

period). Although Appellant filed his petition in accordance with the 60-day

provision, the record reveals that he raised no Section 9545(b) exception to

the applicable one-year time-bar.     See Santos, supra.       Accordingly, this

PCRA court dismissed Appellant’s petition as untimely and this Court

affirmed.

      Only in Appellant’s instant petition, functionally his second for

purposes of PCRA review, did he characterize the PCRA court’s handling of

his premature petition as an act of governmental interference with his

attempt to file a timely PCRA petition seeking reinstatement of direct appeal

rights. See Appellant’s “Objection to PCRA Court’s 907 Notice of Intent to

Dismiss,” C.R. #46 (arguing PCRA court misled Appellant when it dismissed

his premature petition “without prejudice.”). This argument, which is in any

event absent from his brief and, therefore, waived, fails not only as a

meritless attack on the required dismissal of his premature petition but also

under both the Act’s aforementioned 60-day rule and the requirement under

Section 9543(a)(3) that an allegation of error has not been waived. See 42

Pa.C.S. § 9543(a)(3).      As noted above, Appellant had the opportunity,




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indeed, the obligation, in his first PCRA petition to couch this claim within a

Section 9545(b)(1)(i) exception to the PCRA time-bar, but he failed to do so.

      Appellant has not, therefore, established the PCRA court’s jurisdiction

to grant relief on his untimely second PCRA petition. Accordingly, we affirm

the order of the PCRA court dismissing this petition.

     Order is Affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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