J-S81032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 TYNELL J. DOUGLAS                       :
                                         :
                   Appellant             :   No. 1068 MDA 2018

            Appeal from the PCRA Order Entered May 22, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0001990-2014,
            CP-22-CR-0004851-2011, CP-22-CR-0005568-2010


BEFORE:    STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                   FILED JANUARY 16, 2019

     Appellant, Tynell J. Douglas, appeals pro se from the order entered in

the Court of Common Pleas of Dauphin County dismissing his first petition

filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546, without an evidentiary hearing. After a careful review, we affirm.

     The relevant facts and procedural history are as follows: Appellant was

charged with various offenses at three lower court docket numbers; however,

the lower court consolidated the cases. On January 28, 2015, Appellant, who

was represented by counsel, entered a guilty plea on all three of his cases.

Specifically, at lower court docket number 5568-2010, he pled guilty to person

not to possess firearm, carrying firearm without a license, flight to avoid

apprehension, disorderly conduct, and driving while operating privileges were

suspended or revoked; at lower court docket number 4851-2011, he pled
____________________________________
* Former Justice specially assigned to the Superior Court.
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guilty to aggravated assault, terroristic threats, and criminal mischief; and at

lower court docket number 1990-2014, he pled guilty to possession of firearm

prohibited and possession with the intent to deliver a controlled substance.

On February 3, 2015, he proceeded to a sentencing hearing at which the trial

court imposed an aggregate of five years to ten years in prison for the offenses

at docket number 5568-2010, an aggregate of six years to twelve years in

prison for the offenses at docket number 4851-2011, and an aggregate of

eight years of probation for the offenses at docket number 1990-2014. The

sentences for docket number 5568-2010 and 4851-2011 were imposed

concurrently to each other; the sentence for docket number 1990-2014 was

imposed consecutively to the sentences at the other two docket numbers.

       On February 11, 2015, Appellant filed a timely post-sentence motion

seeking credit for time served, which the trial court granted by order entered

on February 13, 2015. The trial court entered a revised sentencing order on

March 4, 2015.1 Appellant did not file a direct appeal.

       On or about December 4, 2017, Appellant filed a pro se PCRA petition,

and the PCRA court appointed counsel to assist Appellant. On March 30, 2018,

counsel filed a petition seeking to withdraw, along with a Turner/Finley2 no-



____________________________________________


1We note the trial court entered the revised sentencing order within thirty
days of the original sentencing order. See 42 Pa.C.S.A. § 5505.

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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merit letter.   By order entered on April 11, 2018, the PCRA court granted

counsel’s petition to withdraw and provided Appellant with notice of its intent

to dismiss pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response,

and by order entered on May 22, 2018, the PCRA court dismissed Appellant’s

PCRA petition. Appellant filed a timely, pro se appeal on or about June 21,

2018.

        Initially, we note that “[o]ur standard of review of the denial of PCRA

relief is clear; we are limited to determining whether the PCRA court’s findings

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

Wojtaszek, 951 A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation

marks omitted).

        Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).       The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 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 the time for seeking review.”           42 Pa.C.S.A. §

9545(b)(3).




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      Three statutory exceptions to the timeliness provisions in the PCRA allow

for very limited circumstances under which the late filing of a petition will be

excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must

allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 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)(i)-(iii).

      “A petition invoking one of these exceptions must be filed within sixty

days of the date the claim could first have been presented.” Commonwealth

v. Lawson, 90 A.3d 1, 5 (Pa.Super. 2014) (citation omitted). “We emphasize

that it is the petitioner who bears the burden to allege and prove that one of

the timeliness exceptions applies.” Commonwealth v. Marshall, 596 Pa.

587, 947 A.2d 714, 719 (2008) (citations omitted).

      Here, Appellant’s judgment of sentence became final on or about April

4, 2015, upon expiration of the time to file a direct appeal to this Court. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).      Appellant’s current petition,

which was filed on or about December 4, 2017, was clearly filed more than

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one year of the date the underlying judgment became final. Thus, the petition

is facially untimely.

      Appellant attempts to invoke the timeliness exception provided for in

Section 9545(b)(1)(ii). Specifically, he alleges that he believed he pled guilty

to an aggregate minimum of five years in prison, as opposed to an aggregate

minimum of six years in prison. He further alleges that he first “discovered”

he received an aggregate minimum of six years in prison during September

of 2016, when he received a status sheet from the Department of Corrections.

      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. Bennett, 593 Pa. 382, 930 A.2d 1264, 1272 (2007)

(quotation marks and citations omitted) (emphasis removed).

      Here, assuming, arguendo, Appellant’s claim meets the “newly-

discovered fact” exception, by Appellant’s own assertion, as of September

2016, he was aware of the fact that he received an aggregate minimum of six

years in prison. However, Appellant did not file his PCRA petition until more

than a year later, on or about December 4, 2017. Accordingly, Appellant has

not met the initial threshold of invoking the timeliness exception of Section

9545(b)(1)(ii) within sixty days of the date the claim could first have been

presented. See Lawson, supra. Thus, we agree with the PCRA court that

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Appellant’s first PCRA petition was untimely filed, and Appellant has failed to

meet any of the timeliness exceptions.3, 4

       For all of the foregoing reasons, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




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3 To the extent Appellant attempts to weave concepts of ineffective assistance
of counsel into his “newly-discovered fact” exception, we note the Supreme
Court has held that claims of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits. See Commonwealth
v. Lark, 560 Pa. 487, 746 A.2d 585, 589-90 (2000) (holding that couching
argument in terms of ineffectiveness cannot save a petition that does not fall
into exception to jurisdictional time bar).

4  We note our Supreme Court has held that “where a single order resolves
issues arising on more than one docket, separate notices of appeal must be
filed for each case.” Commonwealth v. Walker, --- Pa. ---, 185 A.3d 969,
971 (2018). Our Supreme Court applied Walker prospectively from June 1,
2018. Here, on May 22, 2018, the PCRA court filed a single order disposing
of Appellant’s PCRA petition as to each docket, and on or about June 21, 2018,
Appellant filed a single pro se notice of appeal listing each docket. This Court
issued a rule to show cause as to why the instant appeal should not be
quashed under Walker, and in response, Appellant, who is incarcerated,
indicated that he had no adequate opportunity to discover Walker since he
had no, or at least limited, access to the law library during his appeal period.
In the interest of judicial economy, we decline to quash the instant appeal;
however, we affirm the dismissal of Appellant’s first PCRA petition for the
reasons indicated supra.

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