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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
MARQUIS ALFORD,                         :          No. 3219 EDA 2017
                                        :
                       Appellant        :


             Appeal from the PCRA Order, September 28, 2017,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0003923-2008,
             CP-51-CR-0003925-2008, CP-51-CR-0003927-2008


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JUNE 25, 2019

     Marquis Alford appeals from the September 28, 2017 order entered in

the Court of Common Pleas of Philadelphia County that dismissed his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). We affirm.

     The record reflects that on November 10, 2008, appellant entered a

negotiated guilty plea to one count each of criminal attempt (murder),

robbery, criminal conspiracy (robbery), possession of an instrument of crime,

and aggravated assault1 in connection with a crime spree that he engaged in

with his co-defendant, William Brown.       On the same day, the trial court




1 18 Pa.C.S.A. §§ 901(a), 3701(a)(1)(ii), 903(a)(1), 907(a), and 2702(a),
respectively.
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sentenced appellant to 15 to 30 years of imprisonment. Appellant did not file

post-sentence motions or a direct appeal.

             Instead, on August 13, 2009, he sought relief
             pursuant to the [PCRA] claiming that his counsel
             coerced him into a plea where the prosecution did not
             have sufficient evidence to support the elements of
             the alleged crimes. Appointed counsel filed a Finley
             letter[2] and Motion to Withdraw as Counsel on
             December 1, 2010. On January 10, 2011, Judge
             O’Grady filed a Dismissal Notice under Rule 907.
             However, on April 11, 2011, the Court permitted
             [a]ppellant to withdraw his PCRA Petition prior to
             dismissal. On June 5, 2012, [a]ppellant then sought
             relief again pursuant to the PCRA through a pro se
             PCRA Petition, as well as an Amended PCRA Petition,
             but the petition was dismissed on September 28, 2017
             because the issues raised in [a]ppellant’s petition
             were without merit and untimely.

             Appellant then filed a timely Notice of Appeal to the
             Superior Court of Pennsylvania. On February 14,
             2018, the Honorable Sean F. Kennedy entered an
             Order pursuant to Pa.R.A.P. 1925(b) giving
             [a]ppellant twenty-one (21) days in which to file a
             concise Statement of [Errors] Complained of on
             Appeal. This Court[3] filed an Opinion on May 1, 2018
             requesting that [a]ppellant’s appeal be dismissed, as
             he failed to file a timely concise [Rule 1925(b)
             statement] within twenty-one (21) days.

             Appellant then filed a concise [Rule 1925(b)
             statement] and an Application for Remand on June 18,
             2018. The Superior Court remanded the case for filing
             of [a]ppellant’s [Rule] 1925(b) [statement] and
             requested that the Court issue a supplemental opinion
             if necessary.


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

3   Judge Kennedy authored the Rule 1925(a) opinion.


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PCRA court supplemental opinion, 8/6/16 at 3-4.

        After remand, appellant filed his Rule 1925(b) statement. Thereafter,

the PCRA court filed a supplemental Rule 1925(a) opinion.4

        Appellant raises the following issue for our review:    “Was the PCRA

petition filed timely?” (Appellant’s brief at 9.)

        All PCRA petitions, including second and subsequent 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). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally sound.   Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of a

PCRA petition is jurisdictional. 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) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

        Here, the trial court sentenced appellant on November 10, 2008.

Appellant failed to file a direct appeal to this court. Consequently, appellant’s

judgment of sentence became final on December 10, 2008, thirty days after


4   Judge Kennedy authored the supplemental Rule 1925(a) opinion.


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imposition of sentence and the time for filing a direct appeal expired. See

42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69

A.3d 759, 763 (Pa.Super. 2013). Therefore, appellant’s petition, filed June 5,

2012, is facially 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   42 Pa.C.S.A.

§ 9545(b)(1).

      Those three narrow exceptions to the one-year time-bar are: when the

government has interfered with the petitioner’s ability to present the claim,

when the appellant has recently discovered facts upon which his PCRA claim

is predicated, or when either the Supreme Court of Pennsylvania or the

Supreme Court of the United States has recognized a new constitutional right

and made     that right       retroactive.     42    Pa.C.S.A. §       9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012). The

petitioner bears the burden of pleading and proving the applicability of any

exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a valid

exception to the PCRA time-bar, this court may not review the petition. See

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      In this appeal, appellant claims that, at the time of his plea, plea

counsel:

            informed him that even though he asserted his
            innocence that he did not have any chance to win the
            case because his co-defendant[, William Brown,] had
            taken a deal with the District Attorney, failing to do


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            any investigation and maintaining that he would get
            more time if he did not take the deal and that he could
            do nothing for him if he did not take the deal being
            offered by the District Attorney. On May 1, 2012
            [appellant] received a statement/affidavit from his
            co-defendant William Brown in which [Brown]
            maintains that [Brown] alone was responsible for the
            crimes that both were charged with and that
            [appellant] was not involved.

Appellant’s brief at 10.

      The crux of appellant’s argument is that had plea counsel investigated,

plea counsel would have discovered that Brown alone was responsible for the

crimes; and as such, plea counsel’s failure to investigate constituted

ineffectiveness because it resulted in an involuntary and unknowing plea.

      Appellant’s underlying ineffectiveness of plea counsel claim falls under

the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii) (to be eligible for relief under

the PCRA, a petitioner must plead and prove by a preponderance of the

evidence   ineffective     assistance   of   counsel   that   so   undermined   the

truth-determining process that a reliable adjudication of guilt or innocence

could not have taken place). Appellant’s petition, however, is untimely. Our

supreme court has explained that ineffective assistance of counsel claims do

not satisfy any statutory exception to the time-bar.           Commonwealth v.

Robinson, 139 A.3d 178, 186 (Pa. 2016) (explaining that allowing a PCRA

petition to raise new claims of ineffective assistance of counsel more than a

year after judgment of sentence became final directly conflicts with the

legislative mandate of Section 9545(b)(1) of the PCRA).                 Therefore,



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appellant’s claim that plea counsel was ineffective for failing to discover that

only Brown committed the crimes prior to entry of appellant’s guilty plea does

not fall within an exception to the PCRA’s time-bar.

      Appellant nevertheless attempts to circumvent the time-bar by

contending that Brown’s unsworn statement is a newly discovered fact and

because appellee filed his petition within 60 days5 of receiving Brown’s

statement, it falls under the newly discovered facts exception to the PCRA

time-bar.

      The “newly discovered facts” exception at Section 9545(b)(1)(ii)

requires a petitioner to plead and prove that he: (1) did not know the fact(s)

upon which he based his petition; and that he (2) could not have learned those

fact(s) earlier by the exercise of due diligence. Commonwealth v. Shiloh,

170 A.3d 553 (Pa.Super. 2017).           Recently, this court reiterated in

Commonwealth v. Shannon, 184 A.3d 1010, 1015-1016 (Pa.Super. 2018),

that to fall within the timeliness exception for newly discovered facts, “the

factual predicate of the claim must not be of public record and must not be




5 The 60-day rule applicable to appellant’s claim was codified at 42 Pa.C.S.A.
§ 9545(b)(2) and required that “[a]ny petition invoking an exception . . . shall
be filed within 60 days of the date the claim could have been presented.” A
2018 amendment to Section 9545(b)(2) substituted “within one year” for
“within 60 days.” The effective date of the amendment is December 24, 2018,
and the amendment applies to claims arising one year before the effective
date or thereafter. See Act 2018-146, § 3. Therefore, because appellant’s
claim arose prior to December 24, 2017, the 60-day rule applies.


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facts that were previously known but are now presented through a newly

discovered source.”

      Here, the factual predicate of Brown’s statement is appellant’s innocence

and Brown’s guilt. Because appellant was present at the scene of the crimes

with Brown, however, appellant had every reason to know that he was

innocent and his co-defendant was guilty. At best, then, Brown’s statement

is a previously known fact presented through a new source.           Therefore,

Brown’s statement does not fall within the timeliness exception for newly

discovered facts.

      Consequently, appellant has failed to invoke a valid exception to the

time-bar, the PCRA court lacked jurisdiction to review appellant’s petition, and

we may not review the petition on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 6/25/19




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