J-S77035-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
                  v.                    :
                                        :
BEAU ROBERT SWINGLE,                    :
                                        :
                   Appellant            :     No. 1686 EDA 2014


            Appeal from the PCRA Order Entered May 13, 2014,
              in the Court of Common Pleas of Wayne County
            Criminal Division at No(s): CP-64-CR-0000094-2011

BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                 FILED FEBRUARY 05, 2015

     Beau Robert Swingle (Appellant) appeals from the May 13, 2014 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     In April 2011, Appellant was charged with possession with the intent to

deliver a controlled substance (PWID), possession of a controlled substance,

and possession of drug paraphernalia.       On July 18, 2011, Appellant pled

guilty to PWID; the remaining charges were nolle prossed. It is undisputed

that both the written and oral guilty plea colloquy incorrectly informed

Appellant that the maximum sentence he could receive was five years of

incarceration and a $15,000 fine.

     Following the entry of Appellant’s guilty plea, the lower court issued an

order for a pre-sentence investigation report (PSI), and sentencing was


* Retired Senior Judge assigned to the Superior Court.
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scheduled for September 1, 2011.          Prior to the sentencing hearing, the

mistaken maximum sentence was discovered and noted on the front page of

the PSI. The correct maximum sentence was fifteen years in prison and a

$250,000 fine. Ultimately, Appellant was sentenced on September 1, 2011

to 16 to 60 months’ incarceration and a $500 fine. Appellant did not file a

post-sentence motion or a direct appeal.

         On November 14, 2013, Appellant filed pro se a “Nunc Pro-Tunc

Petition for Reconsideration of Sentence,” which the lower court treated as a

PCRA petition.1 PCRA counsel was appointed, and an amended petition was

filed on February 18, 2014. A hearing was held on March 25, 2014, and on

May 13, 2014, the PCRA court dismissed Appellant’s petition as untimely

filed.    Appellant timely filed a notice of appeal.    The PCRA court ordered

Appellant to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925, and Appellant complied.

         Appellant presents the following issues for our consideration:

         I.    Whether the trial court erred in determining that …
               [Appellant’s] PCRA [petition] was not timely filed, and that
               it did not fall within any of the statutory exceptions to the
               one-year time limit?

         II.   Whether the trial court erred in determining that …
               [Appellant] did not prove that the facts upon which his


1
 “It is . . . well-settled that ‘the PCRA provides the sole means for obtaining
collateral review, and that any petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.’” Commonwealth v.
Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (quoting Commonwealth v.
Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)).


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            claims are predicated were unknown to him and could not
            have been ascertained by the exercise of due diligence?

     III.   Whether the trial court erred when it failed to make a
            determination that … [Appellant’s] constitutional rights
            were violated?

     IV.    Whether the trial court erred when it failed to make a
            determination that trial counsel did not render []effective
            assistance of counsel?

     V.     Whether the trial court erred when it failed to make a
            determination that the guilty plea was induced by
            ineffective assistance of counsel?

     VI.    Whether the trial court erred when it failed to make a
            determination that … [Appellant’s] amended PCRA
            [petition] had merit?

Appellant’s Brief at 5-6 (unnecessary capitalization and suggested answers

omitted).

           This Court’s standard of review regarding an order
     dismissing a PCRA petition is whether the determination of the
     PCRA court is supported by evidence of record and is free of
     legal error. Commonwealth v. Burkett, 5 A.3d 1260, 1267
     (Pa. Super. 2010) (citations omitted). “In evaluating a PCRA
     court’s decision, our scope of review is limited to the findings of
     the PCRA court and the evidence of record, viewed in the light
     most favorable to the prevailing party at the trial level.” Id.

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

     Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).      For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).



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“The PCRA’s time restrictions are jurisdictional in nature.”   Chester, 895

A.2d at 522. Pennsylvania law makes clear that no court has jurisdiction to

hear an untimely PCRA petition.   See Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa. 2003).

     Instantly, Appellant was sentenced on September 1, 2011.       Because

he did not file a post-sentence motion or direct appeal, his judgment of

sentence became final on October 3, 2011. See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903.   Thus, Appellant had until October 3, 2012, to file timely a

PCRA petition. He did not do so. Accordingly, Appellant had to plead and

prove how his petition met one of the following exceptions to the timeliness

requirement:

     (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).

     Where the petition is untimely filed, the petitioner bears the burden of

pleading and proving in the petition that one of the exceptions to the one-




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year deadline for filing a PCRA petition applies. Commonwealth v. Bretz,

830 A.2d 1273, 1275-76 (Pa. Super. 2003).              When pleading one of the

foregoing exceptions, a litigant is subject to a 60-day deadline for invoking

an exception which commences from the date on which the claim could have

been presented. 42 Pa.C.S. § 9545(b)(2).

      Appellant alleges that his petition is timely filed pursuant to 42 Pa.C.S.

§ 9545(b)(1)(ii). To satisfy that section, a petitioner must allege and prove

that the factual basis of his claim was previously unknown to him and that

he could not have discovered the facts earlier through the exercise of due

diligence.     See    42     Pa.C.S.   §    9545(b)(1)(ii);   Commonwealth      v.

Huddleston, 55 A.3d 1217, 1220 (Pa. Super. 2012). “Due diligence

demands that the petitioner take reasonable steps to protect his own

interests.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.

2010). As such, a petitioner must provide reasons for why, through the

exercise of due diligence, he did not discover the facts earlier. Id. “This rule

is strictly enforced.” Id.

      Upon review, we conclude that Appellant has failed to meet his

burden. Appellant alleges that he is entitled to PCRA relief on the basis that

he was misinformed as to the applicable maximum sentence at the time he

entered his guilty plea. The PCRA court found that, prior to sentencing, trial

counsel reviewed Appellant’s PSI with Appellant.              Trial Court Opinion,

5/14/2014, at 4. The PCRA court also found that the corrected maximum



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sentence was clearly noted on the front page of the PSI. Id. Additionally,

the PCRA court found that the only correction Appellant made to his PSI

pertained to the time at which he withdrew from high school. Id.

     The PCRA court’s findings above are supported by the record.

Although trial counsel testified at the PCRA hearing that he could not

definitively recall having discussed the corrected maximum sentence in

particular with Appellant, he did testify that he reviewed the PSI with

Appellant prior to sentencing.   N.T., 3/25/2014, at 6-13.     Trial counsel

similarly indicated at the sentencing hearing that he and Appellant had

reviewed the PSI and that the only correction to be made was that Appellant

believed he withdrew from school in 10th grade rather than 9th grade.2 N.T.,

9/1/2011, at 2-3. Moreover, the front page of the PSI provides the following

information with regard to the applicable maximum sentence:

     Maximum Penalty(s):
          15 years/$250,000 fine
     Investigator’s Note: [Appellant’s] signed guilty plea colloquy
     indicated the maximum penalty as 5 years/$15,000 fine, which
     is incorrect. ADA Bompadre and [trial counsel] were contacted,
     and they agreed the maximum penalty in the signed colloquy
     was incorrect.




2
  Appellant testified at the PCRA hearing that trial counsel briefly reviewed
the PSI with him prior to sentencing, though trial counsel did not hand the
PSI to Appellant to allow Appellant to go through it at his own leisure,
Appellant could not see the front page clearly, and the paragraph regarding
the maximum penalty was never brought to Appellant’s attention. N.T.,
3/25/2014, at 17.



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PSI, 9/1/2011, at 1.      Thus, Appellant has failed to prove that he was

previously unaware of the mistake and that he could not have discovered

the mistake through the exercise of due diligence.

      Appellant also alleges that he was entitled to PCRA relief on the basis

that there were inaccuracies in the criminal history portion of the PSI that

were considered during sentencing.         Appellant, however, has made no

attempt to demonstrate that these alleged inaccuracies were previously

unknown to him and that they could not have been ascertained through the

exercise of due diligence.    In fact, Appellant testified at the PCRA hearing

that he first became aware that the PSI contained inaccuracies with regard

to his criminal history during the course of the PSI investigation.       N.T.,

3/25/2014, at 19.      Moreover, Appellant concedes that he notified trial

counsel of the     alleged inaccuracies.      Id.; Amended PCRA Petition,

2/18/2014, at ¶13(b)(3); Appellant’s Brief at 32. Thus, it is apparent that

Appellant knew of the alleged mistakes in his criminal history well before the

instant petition was filed.

      Finally, to the extent that Appellant alleges that PCRA counsel’s

discovery of trial counsel’s ineffectiveness for failing to advise Appellant of

the proper maximum sentence or address alleged inaccuracies in the PSI

constitutes the factual basis for his claim, such a position is unavailing. “Our

Supreme Court has made clear that the section 9545(b)(1)(ii) exception will

not apply to alleged ineffective assistance of counsel claims, even if the



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claims were not knowable until advised of their existence by present

counsel.”     Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super.

2008).

       In light of the above, we conclude that Appellant has failed to meet his

burden to prove that his petition should be treated as timely filed pursuant

to section 9545(b)(1)(ii).     Accordingly, the PCRA court did not err in

dismissing Appellant’s petition as untimely filed.   Therefore, we affirm the

PCRA court’s order.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2015




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