J-S75023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT BENSON EDWARDS                      :
                                               :
                       Appellant               :   No. 828 WDA 2019


              Appeal from the PCRA Order Entered May 13, 2019,
            in the Court of Common Pleas of Westmoreland County,
             Criminal Division at No(s): CP-65-CR-0001847-2016.


BEFORE:      STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 18, 2020

         Robert Benson Edwards appeals pro se from the order denying as

untimely his second petition filed under the Post Conviction Relief Act. 42

Pa.C.S.A. §§ 9541-46. We affirm.

        In denying Edwards’ first PCRA petition, we summarized the pertinent

facts and procedural history as follows:

               In 2016, [Edwards] robbed a jewelry store after
           threatening the owner with intimations that he had a gun.
           He was charged with the following crimes: (1) one count of
           first-degree felony robbery in violation of 18 Pa.C.S. §
           3701(a)(1)(ii); (2) one count of third-degree felony theft in
           violation of 18 Pa.C.S. 3921(a); (3) two counts of third-
           degree felony receiving stolen property in violation of 18
           Pa.C.S. § 3925; and (4) one count of second-degree
           misdemeanor simple assault in violation of 18 Pa.C.S. §

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*   Retired Senior Judge assigned to the Superior Court.
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         2701(a)(3). The maximum aggregate sentence a defendant
         can receive for these crimes is 43 years.

            On August 2, 2016, [Edwards] and the Commonwealth
         entered into a negotiated plea agreement. In exchange for
         [Edwards’] guilty plea, the Commonwealth agreed to nolle
         pros the simple assault and theft charges, and to reduce the
         robbery charge to a second-degree felony. [Edwards] and
         the Commonwealth agreed that [Edwards] would plead
         guilty to one count of robbery pursuant to 18 Pa.C.S. §
         3701(a)(1)(iv), for which [Edwards] would receive a
         sentence of 4 to 20 years’ incarceration, and two counts of
         receiving stolen property, for which [Edwards] would
         receive a sentence at each count of 2 to 7 years’
         incarceration to be served concurrently with the sentence
         for robbery. [Edwards] pled guilty, and the trial court
         sentenced [Edwards] in accordance with the plea
         agreement. [Edwards] did not file a post-sentence motion
         or a direct appeal.

             By order entered August 15, 2016, which was within the
         timeframe permitted by 42 Pa.C.S. § 5505 (regarding
         modification of orders within 30 days after its entry and prior
         to the filing of an appeal), the trial court amended its
         sentencing order and reduced [Edwards’] maximum
         sentence for the robbery count from 20 to 10 years. The
         trial court explained in the order that the amendment was
         “necessary because [the robbery count] is a felony of the
         second degree, carrying a maximum legal sentence [ten]
         years.”

Commonwealth v. Edwards, 195 A.3d 1034 (Pa. Super. 2018), unpublished

memorandum at 1-2 (citation to record omitted).

      We further summarized Edwards’ filing of his first petition for post-

conviction relief, and the pertinent procedural history:

            On June 28, 2017, [Edwards] timely filed a pro se PCRA
         petition, his first, alleging, inter alia, that his negotiated
         sentence was illegal; his plea counsel rendered ineffective
         assistance of counsel by negotiating a plea with an illegal
         sentence; and the trial court erred by modifying his


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       sentence without notice to [Edwards] or without [Edwards]
       being present. [Edwards] averred that the reduction in the
       sentence was the result of collusion between the trial court,
       the Commonwealth’s attorney, and his plea counsel, and
       claims he did not know about the modification until February
       2017. [Edwards] requested that the PCRA court vacate his
       plea and sentence.

          The PCRA court appointed counsel to represent
       [Edwards].       Counsel filed a petition to withdraw
       accompanied by a no merit letter pursuant to
       Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
       Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
       1988) (en banc). [Edwards] filed a response objecting to
       counsel’s petition to withdraw, which he later supplemented
       with permission of the PCRA court. [Edwards] also filed pro
       se a petition to amend his PCRA petition along with an
       amended PCRA petition. In the amended PCRA petition,
       [Edwards], inter alia, averred that the plea colloquy was
       defective because it did not inform him of the maximum
       sentence he was facing, causing him to enter an unknowing
       plea. He also averred that his plea counsel did not inform
       him of the maximum sentence for a second-degree felony,
       and this failure, in addition to plea counsel’s failure to object
       to the plea colloquy, constituted ineffective assistance of
       counsel.

          The PCRA court issued an initial and then amended notice
       of intent to dismiss the petition pursuant to Pa.R.Crim.P.
       907, concluding that (1) the plea colloquy satisfied the
       requirements of Pa.R.Crim.P. 590; (2) [Edwards] was
       sentenced to an illegal sentence in excess of the statutory
       maximum, but the trial court properly corrected the
       sentence within the timelines set forth in 42 Pa.C.S. § 5505;
       (3) plea counsel was ineffective for allowing [Edwards] to
       plead guilty to an illegal sentence, but [Edwards] [was] not
       entitled to relief because his sentence ultimately was
       reduced; therefore, he [had] not suffered prejudice by
       counsel’s ineffective representation; and (4) despite plea
       counsel’s ineffectiveness, [Edwards] entered a knowing and
       voluntary plea because the plea colloquy and guilty plea
       petition were satisfactory.




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Edwards, memorandum opinion at 2-5 (citations to record and footnotes

omitted). Edwards did not file a response. By order entered December 11,

2017, the PCRA court dismissed Edwards’ first PCRA petition and granted

counsel’s petition to withdraw. Id. at 5.

      Edwards filed a timely appeal to this Court in which he challenged each

of the PCRA court’s conclusions. On August 27, 2018, we rejected Edwards’

claims, and, therefore, affirmed the denial of post-conviction relief. Edwards,

supra. Edwards did not seek further review.

      On April 5, 2019, Edwards filed the pro se PCRA petition at issue, his

second. On April 15, 2019, the PCRA court issued Pa.R.Crim.P. 907 notice of

its intention to dismiss the petition because it was untimely, and Edwards

failed to prove an exception to the PCRA’s time bar. Edwards filed a response.

By order entered May 13, 2019, the PCRA court dismissed Edwards’ petition.

This appeal followed. Both Edwards and the PCRA Court have complied with

Pa.R.A.P. 1925.

      Edwards now raises the following issues on appeal:

         1. Is trial counsel required by the Pennsylvania and United
            States Constitution and by an ethical standard of legal
            representation [] to file an appeal on behalf of [Edwards]
            when [he] specifically requested that an appeal be filed?

         2. Did the [trial court interfere] and obstruct [Edwards’]
            right to appeal by [its] failure to properly apprise
            [Edwards] of the appealable amended sentence[?]




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Edwards’ Brief at 3 (excess capitalization omitted).        Before addressing the

issues Edwards raises on appeal, we must first determine whether the PCRA

court correctly determined that his current PCRA petition was untimely filed.

        This Court’s standard of review regarding an order dismissing a petition

under the PCRA is to ascertain whether “the determination of the PCRA court

is supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the findings

in the certified record.” Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

        Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an exception

to the time limitation for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these

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1   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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



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statutory exceptions must be filed within one year of the date the claims could

have been presented. 42 Pa.C.S.A. § 9545(b)(2). Asserted exceptions to the

time restrictions for a PCRA petition must be included in the petition, and may

not be raised for the first time on appeal. Commonwealth v. Furgess, 149

A.3d 90 (Pa. Super. 2016).

       Here, because Edwards did not file a direct appeal to this Court after he

was resentenced on August 15, 2016, his judgment of sentence became final

thirty days thereafter, or on September 14, 2016.         See 42 Pa.C.S.A. §

9545(b)(3). Thus, for purposes of the PCRA’s time bar, Edwards had to file

his first and any subsequent PCRA petitions by September 14, 2017. Edwards

filed his second PCRA petition on April 5, 2019. Thus, the second petition

before us is patently untimely, unless Edwards has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies. See

Hernandez, supra.

       Edwards has failed to plead and prove any exception to the PCRA’s time

bar. In his second PCRA petition, Edwards asserted that prior counsel failed

to file a direct appeal even though he requested one following his original

sentencing.     Edwards further claimed that neither the trial court nor prior



____________________________________________


       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), (ii), and (iii).


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counsel informed him of the amended sentence.           Our case law is clear,

however, that claims of ineffective assistance of counsel cannot establish an

exception to the PCRA’s time bar. See, e.g., Commonwealth v. Edmiston,

65 A.3d 339, 349 (Pa. 2013) (explaining that allegations of ineffectiveness of

counsel will not overcome the jurisdictional timeliness requirements of the

PCRA).     Therefore, the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of Edwards’ second PCRA petition.2     We

therefore affirm its order denying post-conviction relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2020




____________________________________________


2 We further agree with the PCRA court that Edwards’ claim regarding the
failure to appeal his original sentence is waived under the PCRA because
Edwards could have raised the claim in his first petition. See PCRA Court’s
Rule 907 Notice, 4/15/19, at 5-6; 42 Pa.C.S.A. § 9544(b).


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