J-S72030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 BENJAMIN F. SIMMONS                       :
                                           :
                    Appellant              :    No. 1179 MDA 2018

             Appeal from the PCRA Order Entered June 7, 2018
    In the Court of Common Pleas of Juniata County Criminal Division at
                      No(s): CP-34-CR-0000273-2014


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                             FILED MARCH 11, 2019

      Benjamin F. Simmons (“Appellant”) appeals from the order dismissing

his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546, as untimely.          After careful review, we affirm.

      The PCRA court set forth the procedural and factual history as follows:

             On November 17, 2015, [Appellant] accepted a plea
      agreement pleading guilty to: Possession of Controlled Substance
      (35 P.S. § 780-113(a)(16)) and DUI: High Rate of Alcohol (75
      [Pa.C.S] § 3802(b)), with the Commonwealth dismissing four
      other charges. [Appellant] was immediately sentenced to 16 to
      36 months on the possession charge and 48 hours to 6 months on
      the DUI, to run concurrently. [Appellant] received a time credit
      [for time served] from November 29, 2014, making his maximum
      date November 29, 2017. At the close of [Appellant’s] sentencing
      hearing, [Appellant] was verbally advised of all his post-sentence
      rights, including [Appellant’s] right to file post-sentence motions
      within 10 days, the right to file an appeal within 30 days, and the
      right to petition for post-conviction relief within one year of his
      sentence becoming final.           [Appellant] acknowledged his
      understanding verbally, and then signed a form further
      acknowledging his post-sentence rights.
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           [Appellant] filed a PCRA [petition] on September 20, 2017
      and PCRA counsel was appointed [on] December 14, 2017. A
      PCRA hearing was conducted on June 5, 2018, where [Appellant’s]
      PCRA petition was dismissed for untimeliness.

PCRA Court Opinion, 9/7/18, at unnumbered 1.         Appellant filed a timely

appeal, and both Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for our review:

      1. Whether the PCRA Court erred in denying [Appellant’s] PCRA
         as untimely believing that the [pro se] filing of his PCRA was
         not amended by prior counsel and thus he was unable to raise
         the underlying issues that Appellant argues were challenges to
         be made regarding defenses to his underlying conviction?

      2. Whether the PCRA Court erred in not allowing Appellant to
         present evidence on an illegal search and seizure, chain of
         custody regarding the evidence and ineffective assistance of
         counsel by dismissing the PCRA as untimely?

Appellant’s Brief at 6.

      Our standard of review is well established.

             Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination is free of legal error.
      Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa. Super.
      2011), appeal denied, 615 Pa. 784, 42 A.3d 1059 (2012) (citing
      Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super.
      2005)). The PCRA court’s findings will not be disturbed unless
      there is no support for the findings in the certified record. Id.
      (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
      Super. 2001)).

             It is undisputed that a PCRA petition must be filed within
      one year of the date that the judgment of sentence becomes
      final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is
      mandatory and jurisdictional in nature, and the court may not
      ignore     it  in   order   to   reach    the  merits    of   the
      petition. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201,
      203 (2000). A judgment of sentence “becomes final at the

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      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).

             However, an untimely petition may be received when the
      petition alleges, and the petitioner proves, that any of the three
      limited exceptions to the time for filing the petition, set forth at 42
      Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met. A petition
      invoking one of these exceptions must be filed within sixty days
      of the date the claim could first have been presented. 42 Pa.C.S.A.
      § 9545(b)(2). In order to be entitled to the exceptions to the
      PCRA’s one-year filing deadline, “the petitioner must plead and
      prove specific facts that demonstrate his claim was raised within
      the sixty-day time frame” under section 9545(b)(2). Carr, 768
      A.2d at 1167.

Commonwealth v. Hernandez, 79 A.3d 649, 651–652 (Pa. Super. 2013)

(footnote omitted).

      A PCRA petition filed more than one year after the judgment of sentence

becomes final is untimely unless the petitioner invokes one of the following

exceptions:

      (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.

42 Pa.C.S. § 9545(b)(1)(i-iii).


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       In the instant case, Appellant was sentenced on November 17, 2015.

Order, 11/20/15.1 Appellant did not file post-sentence motions or seek review

via direct appeal. Therefore, Appellant’s judgment of sentence became final

on December 17, 2015, thirty days after the trial court imposed the judgment

of sentence in open court, and Appellant failed to file a direct appeal with this

Court. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, Appellant had

until December 19, 2016, to timely file his PCRA petition.2 Appellant filed his

PCRA petition on September 20, 2017, well beyond the one-year time

requirement. PCRA Petition, 9/20/17.

       In his brief to this Court, Appellant avers that his petition falls within the

exception set forth in 42 Pa.C.S. § 9545(b)(1)(ii). Appellant’s Brief at 12.

Specifically, Appellant claims that because he was not educated in the law and

had to educate himself as to his appellate rights, “he did not discover the facts

he wishes to appeal on.” Id. He further avers that it was not until he “self-

schooled” that he became aware of the issues prior counsel should have

raised. Id. Appellant does not cite any case law supporting his assertion that

his lack of legal knowledge, and subsequent self-education, satisfies the newly

discovered facts requirement set forth in Section 9545(b)(1)(ii).


____________________________________________


1Appellant was sentenced on November 17, 2015, but the order was not filed
until November 20, 2015.

2 Although Appellant had one year to file his PCRA petition, December 17,
2016, fell on a Saturday; therefore, he had until December 19, 2016, to file a
timely appeal. 1 Pa.C.S. § 1908.

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      It is well established that ignorance of the law will not excuse a

petitioner’s failure to file a PCRA petition within sixty days of the publication

of the case upon which he is relying in the petition.      Commonwealth v.

Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001) (“Neither the court system

nor the correctional system is obliged to educate or update prisoners

concerning changes in case law.”). It is equally well established that a judicial

opinion does not qualify as a previously unknown “fact”’ capable of triggering

the newly-discovered fact exception under the PCRA.        Commonwealth v.

Watts, 23 A.3d 980, 986 (Pa. 2011). Given all of the above, Appellant has

failed to prove that his facially untimely PCRA petition falls within any of the

exceptions enumerated in 42 Pa.C.S. § 9545(b)(1)(i-iii). Thus, the PCRA court

properly dismissed Appellant’s untimely PCRA petition.

      Moreover, even if Appellant was able to prove that his patently untimely

PCRA petition was subject to one of the enumerated exceptions, he would not

be eligible for relief. Section 9543(a) of the PCRA sets forth the eligibility

requirements for PCRA relief:

      (a)   General rule.--To be eligible for relief under this
            subchapter, the petitioner must plead and prove by a
            preponderance of the evidence all of the following:

            (1)   That the petitioner has been convicted of a
                  crime under the laws of this Commonwealth and
                  is at the time relief is granted:

            (i)   currently  serving    a   sentence     of
                  imprisonment, probation or parole for the
                  crime;



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            (ii)    awaiting execution of a sentence of death for
                    the crime;

            (iii)   serving a sentence which must expire before the
                    person may commence serving the disputed
                    sentence; or

            (iv)    has completed a sentence of imprisonment,
                    probation or parole for the crime and is seeking
                    relief based upon DNA evidence obtained under
                    section 9543.1(d) (relating to postconviction
                    DNA testing).

42 Pa.C.S. § 9543 (emphases added).

      Appellant was sentenced to twelve to thirty-six months of incarceration

for the possession conviction and forty-eight hours to six months of

incarceration for the DUI conviction, to run concurrently. Order, 11/20/15, at

unnumbered 1–2.        Neither sentence included a probationary tail.         Id.

Although Appellant was sentenced on November 17, 2015, he was given credit

for time served from November 29, 2014.           Id. at 2.    Thus, Appellant’s

sentence expired on November 29, 2017, and he is no longer serving a

sentence on the underlying convictions.

       Although Appellant filed his initial pro se PCRA petition on September

20, 2017, when he may have been serving his sentence, in order to be eligible

for PCRA relief, the petitioner must be “currently serving a sentence of

imprisonment, probation or parole.” Commonwealth v. Ahlborn, 699 A.2d

718, 720 (Pa. 1997). In Ahlborn, our Supreme Court held that, “as appellant

is ineligible for relief because he is not currently serving a sentence, dismissal




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of the [PCRA] petition was proper.” Id. at 721. For all the foregoing reasons,

we affirm.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2019




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