J-S44018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

LANNY B. HARRIS

                         Appellant                   No. 1901 EDA 2015


           Appeal from the PCRA Order entered October 23, 2013
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0903241-2002


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 24, 2016

      Appellant, Lanny B. Harris, appeals pro se from the order the Court of

Common Pleas of Philadelphia County entered on October 23, 2013

dismissing his petition pursuant to the Post-Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

      The PCRA court summarized the relevant background in its July 28,

2015 opinion, which we adopt here by reference.         Briefly, on March 17,

2005, following a probation revocation hearing, Appellant was sentenced to

five to ten years’ imprisonment in connection with his guilty plea to

possession of a controlled substance (cocaine) with intent to deliver.

      Appellant filed a PCRA petition on August 29, 2006, which the PCRA

court dismissed on May 22, 2009. On January 28, 2013, Appellant filed the

instant PCRA petition, his second, which the PCRA court dismissed on
J-S44018-16



October 23, 2013, as untimely.            On November 26, 2013, Appellant filed

another PCRA petition, his third. The PCRA court appointed counsel, and on

August 14, 2014 an amended PCRA petition was filed. On May 29, 2015, the

PCRA court granted nunc pro tunc reinstatement of Appellant’s right to

appeal from the dismissal of the January 2013 PCRA petition. Upon request,

Appellant’s counsel was allowed to withdraw from the representation.

       Appellant pro se timely appealed the order dismissing his second PCRA

petition.   The PCRA court ordered Appellant to file Pa.R.A.P. a 1925(b)

statement within 21 days of the order. Appellant, however, failed to do so.

The PCRA court order denying as untimely Appellant’s January 28, 2013

PCRA petition is now before us for disposition.

       Appellant argues the trial court erred in several instances with regard

to his prior filings.1 Nowhere, however, does Appellant explain whether we

can entertain the merits of his challenges. In fact, we cannot.

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

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




____________________________________________


1
  Appellant alleges he filed an untimely motion for reconsideration on
October 21, 2005, which the trial court failed to treat as a PCRA petition.
There is no record of a motion filed on that day. The trial court’s docket
sheet shows an entry on October 31, 2005 stating: “PETITION FILE
MAINTENANCE ADMINISTRATIVE DELETION”.             The entry following the
October 31, 2005 notation concerns the filing, on August 29, 2006, of
Appellant’s PCRA petition.



                                           -2-
J-S44018-16


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).

      Here, Appellant’s judgment became final on April 18, 2005, at the

expiration of 30 days for filing a direct appeal.         See Pa.R.A.P. 903;

42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date to file a

timely PCRA petition.   The instant petition was filed on January 28, 2013,

more than seven years after the expiration of the above deadline.          The

petition is, therefore, facially untimely.   Thus, Appellant had to allege and

prove he met one of the exceptions to the time-bar. Appellant did not do




                                      -3-
J-S44018-16


so.2    Accordingly, we affirm the order of the PCRA court dismissing

Appellant’s instant petition as untimely.3 We direct that a copy of the trial

court’s July 28, 2015 opinion be attached to any future filings in this case.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016


____________________________________________


2
   On appeal, for the first time, Appellant alleges that he met the
“governmental interference” exception because the trial court failed to
appoint counsel in connection with his October 21, 2005 motion. Appellant’s
Brief at 15. The argument is waived. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”). In any event, it is well-settled that the timeliness exceptions
must be pled in the PCRA petition. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”).
Here, Appellant did not even acknowledge a timeliness issue, let alone
address the applicability of any exception in his petition. Additionally, we do
not see any connection between the trial court’s alleged “error” in 2005 and
the untimeliness of the instant petition. Finally, nowhere did Appellant state
when he first learned of the “governmental interference” and what
prevented him from filing a petition within 60 days from the discovery of the
interference. See 42 Pa.C.S.A. § 9545(b)(2).
3
  We also note that Appellant failed to file a Rule 1925(b) statement, despite
the PCRA court’s order to do so. Failure to file said statement generally
results in a waiver of the issues raised on appeal.             See Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).



                                           -4-
                                                                                   Circulated 07/28/2016 09:46 AM




   IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
           FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


COMMONWEALTH OF
   PENNSYLVANIA                                  CP-51-CR-0903241-2002


                    v.
                                                 SUPERIOR COURT
                                                 1901 EDA 2015
       LANNY B. HARRIS

                                                                            FILED
                                                                             JUL 2 8 2015
                                   OPINION                       . Crimin~! Appeals Unit
                                                                F,rst Jud1c1a1 District of PA
CHRIS R. WOGAN, J.

                                Procedural Posture

      On December 5, 2002, defendant entered into a negotiated guilty plea to

PWID (possessing    cocaine with the intent to deliver) and was sentenced to 36

months reporting probation, 35 P.S. §780-113(a)(30).           At a violation of probation

(VOP) hearing on March 17, 2005, defendant was found in direct violation of this

probation by committing a murder six months after being placed on probation by

this court (N.T. 3/17/05, p. 8). He was sentenced to five to ten years incarceration.

                                                 CP-51-CR-0903241-2002   Comm. v. Harris. LannY
                                                                   Opmicn




                                                      1111111111111111111111111
                                                                 .>24831961
Defendant filed a "Petition To Reconsider VOP Sentence" on March 24, 2005,

which was denied on April 21, 2005.1

        On August         29,   2006,     defendant     filed a "Writ         of Habeas       Corpus

Relief/Dismissal Correction of Sentence ... " This "writ" was classified by the court

system as a Petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§9541, et seq.        PCRA counsel, Emily Beth Cherniack, Esquire, entered her

appearance on January 18, 2007, and filed a Finley letter and Petition To Withdraw

As Counsel on April 24, 2009.2             On April 24, 2009, this court filed a dismissal

Notice under Pa.R.Crim.P.            907, writing that the issues raised in defendant's

petition were without merit, and his attorney also determined that the issues raised

were without merit. The PCRA Petition was formally dismissed on May 22, 2009.

        On January 28, 2013, defendant filed a prose second PCRA Petition. After a

hearing on September 23, 2013, this court sent defendant a 907 Notice that it was

going to dismiss his second PCRA Petition as untimely; on October 7, 2013, the




         These dates are according to the Secure Docket in this case. Defendant states that he
filed the reconsideration of sentence on March 17, 2005, and it was denied on March 24, 2005.
PCRA counsel Emily Beth Cherniack, Esquire, also wrote those dates in her Finley Letter.
Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).
         On October 21, 2005, defendant filed an untimely prose "Motion For Modification Of
Sentence Nunc Pro Tune."

2
        In her Finley letter, counsel wrote that petitioner did not file his claim until August, 2006,
over a year after the trial court denied his Petition for Reconsideration of Sentence. "Therefore,
this [petition] was not timely."
                                                                                                     2
907 Notice was filed.       On October 23, 2013, the second PCRA Petition was

formally dismissed.

         On November 26, 2013, a third pro se PCRA Petition was filed. On May

20, 2014, Sandjai Weaver, Esquire, entered her appearance. On August 14, 2014,

a counseled Amended PCRA Petition was filed.                On April 28, 2015, the

Commonwealth agreed to nunc pro tune reinstatement of defendant's appellate

rights; on May 29, 2015, defendant's appellate rights were reinstated. On June 21,

2015, attorney Weaver filed a Motion to Withdraw as counsel.

         On June 22, 2015, defendant filed a prose Notice of Appeal.       On July l,

2015, and re-sent July 15, 2015, this court ordered pro se defendant to file a

Statement Of Errors Complained Of On Appeal within 21 days of the date of the

Order.     The Superior Court Docket lists that defendant is being represented on

appeal by Sandjai Weaver, Esquire. In the interest of time, this court will address

the only issue that can be raised on appeal, the timeliness of the PCRA Petition.




                                       Discussion

         Defendant sought reinstatement of his right to appeal this court's October

23, 2013, Order denying his second filed PCRA Petition. See Amended Petition

Under The Post Conviction Relief Act, Aug. 14, 2014, ~15. His second PCRA

Petition was untimely filed because it was not filed within one year of the date his


                                                                                       3
                                  )                                         )

judgment became final and defendant did not even plead any of the three

exceptions to excuse the late filing. See 42 Pa.C.S. §9545(b ).3



                                             Conclusion

          Defendant's second PCRA Petition was untimely and did not plead any

exceptions to the late filing.        Defendant's PCRA Petition was properly dismissed

and defendant's sentence should stand.




3
    See 42 Pa.C.S. §9545, Jurisdiction and Proceedings
          (b) Time for filing petition.>-
          (1) Any petition under this subchapter, including a second or subsequent petition,
          shall be filed within one year of the date the judgment becomes final, unless the
          petition alleges and the petitioner proves that:
                   (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.

                                                                                               4
