J-S50027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ROBERT HAVILAND

                            Appellant                    No. 2184 MDA 2015


           Appeal from the PCRA Order entered November 19, 2015
               In the Court of Common Pleas of Schuylkill County
    Criminal Division at Nos: CP-54-CR-0000218-2011, CP-54-CR-0000421-
                                     2011


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED SEPTEMBER 16, 2016

        Appellant, Robert Haviland, appeals from the order the Court of

Common Pleas of Schuylkill County entered on November 19, 2015, denying

his request for collateral relief under the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9451-46. Upon review, we affirm.

        The PCRA court summarized the relevant background of this matter in

its October 20, 2015 opinion, which we incorporate here by reference. PCRA

Court Opinion, 10/20/15, at 1-3.           Briefly, on February 2, 2012, Appellant

pled guilty to delivery of a controlled substance, possession with intent to

deliver a controlled substance, possession of drug paraphernalia and driving

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S50027-16



under the influence of a controlled substance.                  See Commonwealth v.

Haviland, No. 937 MDA 2012, unpublished memorandum at 2 (Pa. Super.

filed November 30, 2012).            On March 26, 2012, the trial court sentenced

Appellant to an aggregate term of four years and three months to eleven

and one-half years in prison. Id.

          Appellant   filed   a   direct   appeal   to   this    Court,   challenging   the

voluntariness of his guilty pleas.            We affirmed Appellant’s judgment of

sentence on November 30, 2012.                Id. at 1, 10.       On January 14, 2013,

Appellant filed his first PCRA petition, alleging plea counsel’s ineffective

assistance and the voluntariness of his guilty pleas. The PCRA court denied

relief.      We affirmed on February 4, 2014.                   See Commonwealth v.

Haviland, No. 690 MDA 2013, unpublished memorandum at 1, 8 (Pa.

Super. filed February 4, 2014).             On June 12, 2014, the Supreme Court

denied Appellant’s petition for allowance of appeal. See Commonwealth v.

Haviland, 94 A.3d 1008 (Pa. 2014). Appellant filed the instant petition on

September 18, 2015, alleging his prior counsel (plea and first PCRA) were

both ineffective.       The PCRA court denied relief because the petition was

untimely, in addition to finding the claims waived or previously litigated.

See PCRA Court Opinion, 10/20/15, at 5. This appeal followed.

          Appellant alleges prior counsel were ineffective for failing to challenge

the legality of his sentence. Appellant’s Brief at 1. Appellant alleges that he




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J-S50027-16



is entitled to relief based on Commonwealth v. Musau, 69 A.3d 754 (Pa.

Super. 2013), appeal denied, 117 A.3d 296 (Pa. 2005).1

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).

       A PCRA petition, including a second or a subsequent petition, must be

filed within one year of the judgment becoming final.       See 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 time

for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).          There are some

exceptions to this general rule. It is Appellant’s duty, however, to allege and

prove the applicability of the exceptions, and that the petition was filed

within 60 days of the date the claim could have been presented.           See

42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the

petition.   See, e.g., Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).




____________________________________________


1
  In Musau we interpreted 75 Pa.C.S.A. § 3803 as providing a six-month
maximum sentence for a second DUI offense involving refusal to submit to
chemical testing.



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J-S50027-16



       Here, as also noted by the PCRA court, there is no question that

Appellant’s PCRA petition is facially untimely.2 See PCRA Court Opinion at 4.

Thus, Appellant had to allege and prove he met one of the exceptions to the

time bar.     Appellant did not do so.         Indeed, despite citing authorities to

support the merits of his claim, nowhere did Appellant explain on what basis

his PCRA petition could be entertained. Appellant seems to believe that a

challenge to the legality of sentence is not waivable and it is not subject to

the PCRA’s jurisdictional time limitations. Appellant is mistaken. It is well-

established that “[a]lthough legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one

of the exceptions thereto. Thus, Appellant’s contention is easily dismissed.”

Commonwealth v Fay, 737 A.2d 214, 223 (Pa. 1999) (citation omitted).

Regarding the authority Appellant relies upon, we note that Musau, to the

extent it is applicable, was decided on June 28, 2013, whereas the instant

PCRA petition was filed on September 18, 2015, which is well beyond the

60-day window provided under 42 Pa.C.S.A. § 9545(b)(2).                   Appellant

provides no explanation why he meets the jurisdictional requirements

____________________________________________


2
  As noted, we affirmed the judgment of sentence on November 30, 2012.
Appellant’s judgment became final on December 30, 2012, at the expiration
of the 30-day window to file a petition for allowance of appeal with the
Supreme Court. Appellant had one year from December 30, 2012, that is
December 30, 2013, to file a timely PCRA petition. Since Appellant filed the
instant petition on September 18, 2015, the PCRA petition is facially
untimely.



                                           -4-
J-S50027-16



despite the patent untimeliness of his petition.   As such, we conclude the

instant PCRA petition is untimely and Appellant failed to establish the

applicability of any of the exceptions to the PCRA’s time bar.3 We direct that

a copy of the PCRA court’s October 20, 2015 opinion be attached to any

future filings in this case.




____________________________________________


3
  To the extent Appellant’s claims can be construed as claims of ineffective
assistance of counsel, assuming we could review the merits of the challenge,
we note that Appellant failed to plead and prove that prior counsel rendered
ineffective assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). “To
prevail on an [ineffectiveness] claim, a PCRA petitioner must plead and
prove by a preponderance of the evidence that (1) the underlying legal claim
has arguable merit; (2) counsel had no reasonable basis for acting or failing
to    act;   and     (3)    the   petitioner suffered  resulting   prejudice.”
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super.
2015) (en banc).         “A petitioner must prove all three factors of the
‘[Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)] test,’ or the claim
fails.” Id. Having failed to plead and prove ineffective assistance of counsel
his claim fails also in its merits.

The PCRA court also noted the issues raised in the instant petition were both
waived and/or previously litigated. In light of our disposition, we need not
address this conclusion by the PCRA court.




                                           -5-
J-S50027-16



        Order affirmed.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2016




                                      -6-
                                                                             Circulated 08/31/2016 11:55 AM
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     IN THE COURT OF COMMON PLEAS OF SCHUYLKILL COUNTY--CRIMINAL

COMMONWEALTH          OF PENNSYLVANIA                      NO.:   218-2011   & 421-2011

                      VS.


ROBERT HAVILAND,
                                Defendant


                   Christine Holman, District Attorney - for the Commonwealth
                              Robert Haviland - Defendant Pro Se
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       The matter before the Court involves the Defendant's Second PCRA~eti~n filmi

September 18, 2015.         On September 23, 2015 the Court issued a Rule to Show Cause

on the Commonwealth to show why a Hearing on Defendant's PCRA Petition should not

be granted. The Commonwealth timely filed its Answer to the Rule and filed a Motion to

Dismiss Without     Hearing on October 5, 2015.           The Commonwealth             alleges that

Defendant's second PCRA Petition is untimely and therefore the Court is without

jurisdiction to consider its merits, if any.    It also argues that the present claims of the

defendant have been waived or previously finally litigated.

       In its Motion the Commonwealth          points out that Defendant was sentenced on

Mary 26, 2012 to an aggregate sentence of four (4) years, three (3) months to 11 Y2

years in a State Correctional Institution.     Thereafter Defendant filed a Motion to Vacate

Sentence and Withdraw his Guilty Plea, which was subsequently denied.                  He appealed

1
the decision to the Pennsylvania        Superior Court.    The Superior Court affirmed the

judgment of sentence on November 30, 2012. He did not file a Petition for Allowance of

Appeal so his sentence became final on December 30, 2012.                See 42 C.S.A. sec.

9545(b)(1)

       The Defendant then filed a PCRA Petition on January 14, 2013. A Hearing was

held on said Petition on February 26, 2013 at which Defendant and his Trial attorney,

Andrea Thompson, Esquire testified.         Attorney Mark Barket was Defendant's         Court

appointed counsel in this proceeding.     On March 15, 2013 the Court denied Defendant's

first PCRA Petition.    On February 4, 2014 the Superior Court affirmed the Trial Court's

decision and denied Defendant's appeal.

       Defendant then filed a Petition for Allowance of Appeal to the Supreme Court of

Pennsylvania.     On June 12, 2014, the Pennsylvania Supreme Court denied Defendant's

Petition for Allowance of Appeal.      The Defendant's second PCRA Petition was not filed

until September 18, 2015. It is noted that Court appointed private counsel, Julia Werdt,

Esquire, represented      Defendant    in his appeals to the Pennsylvania        Superior and

Supreme Courts.

       In his present Motion Defendant          presents claims attacking Attorney Andrea

Thompson's      representation   of him during Pre-Trial proceedings, at his Guilty Plea,

Sentencing      and   Post-Sentence.    These    claims   have   been   raised   and   rejected

previously. He also asserts claims against Attorney Mark Barket's representation of him

during his first PCRA Petition at the Trial Court level. Any other claims presently made

should have been presented in his first PCRA.        Because they were not presented they


2
are waived.    42 Pa. C.S.A.   sec. 9544(b) Any claims pertaining to Attorney Barket's

representation should have been presented to the Pennsylvania Superior Court during

appellate review of his first PCRA.      Commonwealth     v. Burkett, 5, A.3d 1260, 1272-73

(Pa. Super. 2010)

      At the appellate     review of Attorney     Barket's    representation   of Defendant,

Defendant was represented by Court appointed, private counsel, Julia Werdt, Esquire.

Since the attacks on his prior counsel's representation were not presented at that time

they are waived. 42 Pa. C.S.A. sec. 9544(b) The Commonwealth now moves the Court

to Dismiss the instant PCRA Petition for untimeliness and asserts that all claims therein

are waived.   See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

      All PCRA petitions, including second (emphasis added) or subsequent petitions,

      must be filed within one year of the date the judgment of sentence becomes final,

      that is either at the conclusion of direct review or the expiration of the deadline for

      seeking review. 42 Pa.C.S.A. 9545(b)(3).      On this point appellate court decisions

      are clear, holding that a conviction becomes final, for purposes of Pennsylvania's

      Post    Conviction   Relief Act,    at the conclusion    of direct   review,   including

      discretionary review in the Supreme Court of Pennsylvania, or at the expiration of

      the time for seeking the review. Whitney      v.   Horn, C.A. 3 (Pa.) 2002, 280 F.3d

      240, certiorari denied 123 S.Ct. 1351, 537 U.S. 1195, 154 L.Ed 2d 1030. In that

      case the court held that for purposes of the one-year statute of limitations for

      petitions seeking relief under the PCRA, the defendant's conviction became final

      after the Pennsylvania Supreme Court affirmed his sentence, when the time for


3
    filing for writ of certiorari with the United States Supreme Court expired.   In Com.

    v. Callahan, 101 A.3d 118, Super. 2014, the court held that in fixing the date

    upon which a judgment of sentence becomes final, the PCRA does not refer to

    the conclusion of collateral review or the time for appealing a collateral review

    determination.   The plain language of the PCRA statute provides that a judgment

    of sentence becomes final immediately upon expiration of the time for seeking

    direct review, even if collateral proceedings are still ongoing.   In the case at bar

    the Pennsylvania Superior Court, on direct appeal of the judgment of sentence

    affirmed the judgment of sentence on November 30, 2012.            Defendant would

    have had 30 days to appeal the decision of the Superior Court which would have

    been December 30, 2012, the date on which under the PCRA the judgment

    would have been deemed final.          The defendant filed no such Petition for

    Allowance of Appeal by December 30, 2012.         Defendant, under the PCRA and

    the relevant foregoing decisions, would have had one year from that date of

    December 30, 2012, that is by December 30, 2013, to file his PCRA petition.

    The Defendant filed his present (second) PCRA petition on September 18, 2015.

    His petition is untimely and the Court does not have jurisdiction to consider it.

    Untimely PCRA petitions must be dismissed unless the petitioner alleges and

    proves that his claims were not raised previously because of one of the following:

    (1) the unconstitutional interference of governmental officials, (2) the discovery of

    facts that could not have previously been ascertained by due diligence, or (3) the

    recognition of a newly recognized constitutional right that applies retroactively. 42


4
       Pa.C.S.A. 9545(b)(1 )(i-iii).      Based on the present record before the court,

       including   the assertions      made   in the Defendant's   petition,   none of these

       exceptions apply to the untimely filing of the defendant's       petition in this case.

       The defendant, based on the credible evidence of record, has not alleged nor

       proven that the claims he now raises were not raised previously because of any

       of the foregoing    reasons.     This case does not involve any unconstitutional

       interference of governmental officials.    The defendant was aware of his present

       claims some time before he even filed his first PCRA petition and did not raise

       them at the time he was aware of them.             This case does not involve the

       recognition of a new constitutional right that applies retroactively.

       The court further agrees, based on the record, that the present claims of the

defendant have been waived or finally litigated. Certain claims pertaining to Attorney

Thompson's representation were raised and ruled upon, adversely to the Defendant by

this Court and the appellate courts. Any other of the defendant's present claims could

have been raised by the defendant but he failed to do so before trial, at trial, during

unitary review, on appeal , or in a prior state post conviction proceeding. 42 Pa.C.S.A.

9544(b).

       Accordingly the Court enters the following:




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