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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    v.                     :
                                           :
GARY MARC DANIELS,                         :             No. 3373 EDA 2016
                                           :
                           Appellant       :

               Appeal from the PCRA Order, September 26, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0007136-2005

BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED AUGUST 15, 2017

        Gary Marc Daniels appeals from the September 26, 2016 order

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        The relevant facts of this case were summarized by the PCRA court in

its February 1, 2017 opinion and need not be reiterated here. (See PCRA

court opinion, 2/1/17 at 1-4.) Appellant was found guilty of possession of a

controlled    substance,    possession   with   intent   to   deliver   a   controlled

substance, and possession of drug paraphernalia1 following a bench trial. On

May 28, 2008, appellant was sentenced to an aggregate term of five to

ten years’ imprisonment, followed by one year of probation. Appellant filed

a timely direct appeal, and this court affirmed appellant’s judgment of



1
    35 P.S. §§ 780-113(a)(16), (30), and (32), respectively.
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sentence on October 9, 2009. See Commonwealth v. Daniels, 987 A.2d

811 (Pa.Super. 2009) (unpublished memorandum), appeal denied, 9 A.3d

626 (Pa. 2010).        On November 1, 2010, our supreme court denied

appellant’s petition for allowance of appeal, and appellant did not file a

petition for writ of certiorari with the United States Supreme Court. Id.

      On June 15, 2015, appellant filed the instant PCRA petition, his first,

with the assistance of Michael J. Malloy, Esq. (hereinafter, “PCRA counsel”).

On July 25, 2016, the PCRA court provided appellant with notice of its

intention   to   dismiss     his   petition   without   a   hearing,   pursuant   to

Pa.R.Crim.P. 907(1).       Thereafter, on September 23, 2016, the PCRA court

conducted a hearing as to whether it had jurisdiction over this matter. As

noted, on September 26, 2016, the PCRA court dismissed appellant’s

petition. This timely appeal followed.2

      Appellant raises the following issue for our review:

            1.     Did the [PCRA] court err in denying
                   [a]ppellant’s [PCRA petition] without a hearing
                   when [a]ppellant’s counsel failed to notify
                   [a]ppellant of the denial of the appeal in a
                   timely manner, and further, failed to follow
                   [a]ppellant’s instruction to seek further
                   [a]ppellate review?

Appellant’s brief at 4.


2
  The record reflects that on October 27, 2016, the PCRA court ordered
appellant to file a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b)
statement on November 16, 2016, and the PCRA court filed its Rule 1925(a)
opinion on February 1, 2017.


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         Proper appellate review of a PCRA court’s dismissal of a PCRA petition

is limited to the examination of “whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s

findings will not be disturbed unless there is no support for the findings in

the certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super.

2014) (citations omitted). “This Court grants great deference to the findings

of the PCRA court, and we will not disturb those findings merely because the

record could support a contrary holding.”       Commonwealth v. Hickman,

799 A.2d 136, 140 (Pa.Super. 2002) (citation omitted).

         Preliminarily, we must consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA

court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted). All PCRA petitions must be filed within one year of when

a   defendant’s    judgment    of   sentence   becomes   final.   42   Pa.C.S.A.

§ 9545(b)(1). “A judgment becomes 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 the review.”      42 Pa.C.S.A. § 9545(b)(3).      If a PCRA petition is

untimely, a court lacks jurisdiction over the petition.     Commonwealth v.

Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).




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        Instantly,    appellant’s   judgment   of   sentence   became     final   on

January 31, 2011, 90 days after our supreme court denied appellant’s

petition for allowance of appeal and the time for filing a petition for writ of

certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A.

§ 9545(b)(3). Thus, in order to comply with the filing requirements of the

PCRA, appellant was required to file his petition by January 31, 2012.

See id. § 9545(b)(1). Appellant’s petition, filed June 15, 2015, is patently

untimely.      As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in Section 9545(b)(1).3


3
    The three PCRA time-bar exceptions are as follows:

              (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.A. § 9545(b)(1)(i-iii).



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     Our review of the September 26, 2016 hearing transcript reveals that

PCRA counsel specifically acknowledged that appellant could not satisfy any

of the three statutory exceptions to the PCRA time-bar:

           THE COURT: Okay. So, you haven’t met any of the
           three exceptions.

           [PCRA COUNSEL]: That’s correct.

           THE COURT: You agree with that?

           [PCRA COUNSEL]: That’s correct. I’m asking that it
           be considered nunc pro tunc. That’s exactly right.

Notes of testimony, 9/26/16 at 12-13, 15.

     On appeal, appellant contends that his trial counsel, Clinton L.

Johnson, Esq., was ineffective in failing to timely notify him when the

Pennsylvania Supreme Court denied his petition for allowance of appeal and

in failing to pursue federal habeas corpus relief. (Appellant’s brief at 9.)

Appellant maintains that counsel’s purported ineffectiveness is the sole

reason why his instant PCRA petition was untimely filed and that the PCRA

time-bar requirements should not be applied to this matter. (Id. at 10-12.)

     “It is well-settled that couching a petitioner’s claims in terms of

ineffectiveness will not save an otherwise untimely filed petition from the

application of the time restrictions of the PCRA.”        Commonwealth v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (citation omitted). In Robinson,

our supreme court explained that,

           [the PCRA’s] statutory time-bar implicates the
           court’s very power to adjudicate a controversy and


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            prohibits a court from extending filing periods except
            as the statute permits. Accordingly, the period
            for filing a PCRA petition is not subject to the
            doctrine of equitable tolling; instead, the time
            for filing a PCRA petition can be extended only
            by operation of one of the statutorily
            enumerated exceptions to the PCRA time-bar.

Id. at 185 (citations and internal quotation marks omitted; emphasis

added).

      Furthermore, even to the extent that appellant’s ineffectiveness claim

could arguably be construed as a “newly-discovered fact” exception to the

PCRA time-bar, appellant would still not be entitled to relief.      In order to

invoke the PCRA court’s jurisdiction, appellant would need to demonstrate

that he filed his petition raising this exception “within 60 days of the date

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

Appellant’s issues allege ineffectiveness on the part of his trial counsel, but

he failed to explain why he did not know or should have known about

counsel’s purported ineffectiveness until June 15, 2015, nearly four and a

half years after his judgment of sentence became final.      Accordingly, any

timeliness exception raised pursuant to section 9545(b)(1)(ii) would fail.

      Based on the foregoing, we conclude that the PCRA court lacked

jurisdiction to consider the merits of appellant’s claims.    Accordingly, we

discern no error on the part of the PCRA court in dismissing appellant’s PCRA

petition as untimely.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/15/2017




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