J-S16041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    ANTHONY MICHAEL BALLARD                    :
                                               :      No. 1440 MDA 2017
                       Appellant               :


                Appeal from the PCRA Order September 7, 2017
               in the Court of Common Pleas of Schuylkill County
               Criminal Division at No.: CP-54-CR-0001234-2013


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED APRIL 02, 2018

        Appellant, Anthony Michael Ballard, appeals pro se from the order

denying his second petition filed pursuant to the Post Conviction Relief Act

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

        On October 16, 2014, Appellant entered a negotiated guilty plea to

murder of the third degree and criminal conspiracy.1           In exchange, the

Commonwealth nolle prossed the charges of murder of the first degree,

aggravated assault, simple assault, and recklessly endangering another




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1   See 18 Pa.C.S.A. §§ 2501(a) and 903(a)(1), respectively.


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* Retired Senior Judge assigned to the Superior Court.
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person.2     The same day, pursuant to the terms of the negotiated plea

agreement, the court sentenced Appellant to an aggregate term of not less

than twenty-four and one-half nor more than forty-nine years’ imprisonment.

Appellant did not file a direct appeal.

       On September 15, 2015, Appellant filed a timely pro se first PCRA

petition, in which he argued that his sentence was illegal. Appointed counsel

filed an amended petition. At the hearing on the petition, Appellant added a

claim of ineffective assistance of counsel on the basis that his plea was

unlawfully induced. On January 22, 2016, the PCRA court denied relief. This

Court affirmed the PCRA court denial on September 23, 2016, and the

Pennsylvania Supreme Court denied further review on May 3, 2017. (See

Commonwealth v. Ballard, 158 A.3d 187 (Pa. Super. 2016) (unpublished

memorandum), appeal denied, 168 A.3d 1289 (Pa. 2017)).

       Appellant filed his second pro se PCRA petition on June 14, 2017. The

PCRA court provided Appellant with Rule 907 notice of its intent to dismiss the

petition on August 11, 2017. See Pa.R.Crim.P. 907(1). Appellant responded




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2  See 18 Pa.C.S.A. §§ 2502(a), 2702(a)(4), 2701(a)(2), and 2705,
respectively. The charges against Appellant related to his shooting of the
unarmed nineteen-year-old victim, at 8:00 P.M., in a highly populated area.
Appellant fired ten shots, with one of them hitting and fatally wounding the
victim. (See N.T. Guilty Plea/Sentencing, 10/16/16, at 8).



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to the notice on August 30, 2017. On September 7, 2017, the court dismissed

the petition as untimely. Appellant timely appealed.3

       Appellant raises four questions for this Court’s review.

       A.     Did the [PCRA] [c]ourt err and abuse[] its discretion, when
       it denied Appellant’s [s]econd . . . PCRA [p]etition, when Appellant
       claimed [a]ppellate [c]ounsel was ineffective for failing to raise on
       [d]irect [a]ppeal,[4] [t]rial [c]ounsel’s ineffectiveness for failing to
       raise a weight claim?

       B.     Did [t]he [PCRA] [c]ourt err and abuse[] its discretion, when
       it denied Appellant’s [s]econd . . . PCRA [p]etition, when Appellant
       claimed [a]ppellant [sic] [c]ounsel was ineffective for failing to
       raise on [d]irect [a]ppeal, [t]rial [c]ounsel’s ineffectiveness for
       failing to call character witnesses on behalf of Appellant?

       C.     Did [t]he [PCRA] [c]ourt err and abuse[] its discretion, when
       it denied Appellant’s [s]econd . . . PCRA [p]etition, when Appellant
       claimed [a]ppellant [sic] [c]ounsel was ineffective for failing to
       raise on [d]irect [a]ppeal, [t]rial [c]ounsel’s ineffectiveness for
       failing to call Appellant’s [a]libi [w]itnesses, on behalf of
       Appellant, when Appellant asked her to do so?

       D.     Did [t]he [PCRA] [c]ourt err and abuse[] its discretion, when
       it denied Appellant’s [s]econd . . . PCRA [p]etition, when Appellant
       claimed [a]ppellant [sic] [c]ounsel was ineffective for failing to
       raise on [d]irect [a]ppeal, [t]rial [c]ounsel’s ineffectiveness for
       failing to argue that Appellant is innocent of all charges?



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3Appellant filed a court-ordered statement of errors complained of on appeal
on November 1, 2017. The court filed an opinion on November 17, 2017 in
which it relied on the reasons stated in its August 11, 2017 Rule 907 notice to
support its decision. See Pa.R.A.P. 1925.

4 Appellant did not file a direct appeal. The attorney to whom he refers as
appellate counsel throughout his brief, Claude A. Lord Shields, Esquire,
represented him during the litigation of his first PCRA petition. (See,
Appellant’s Brief, at 4-6, 9-35; Docket Number CP-54-CR-0001234-2013, at
10-12).

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(Appellant’s Brief, at 4-5).

      Our standard of review of a PCRA court’s decision is well-settled.

            Our standard of review of the denial of a PCRA petition is
      limited to examining whether the record evidence supports the
      court’s determination and whether the court’s decision is free of
      legal error. This Court grants great deference to the findings of
      the PCRA court if the record contains any support for those
      findings.    If the record supports a post-conviction court’s
      credibility determination, it is binding on the appellate court. A
      PCRA court’s legal conclusions, however, are reviewed de novo.

Commonwealth v. Moriarty, ___ A.3d ___, 2018 WL 1192727, at *3 (Pa.

Super. filed March 8, 2018) (citations and quotation marks omitted).

      We begin by addressing the timeliness of Appellant’s petition.

             To be timely, a PCRA petition, including a second or
      subsequent petition, must be filed within one year of a judgment
      of sentence becoming final. See 42 Pa.C.S.[A.] § 9545(b)(1).
      This time constraint is jurisdictional in nature, and is not subject
      to tolling or other equitable considerations. The statutory time
      bar implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits. Thus, the jurisdictional time bar only can be
      overcome by satisfaction of one of the three statutory exceptions
      codified at 42 Pa.C.S.[A.] § 9545(b)(1)(i)–(iii). . . .

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (case citations and

quotation marks omitted).

      The three statutory exceptions to the PCRA time-bar are:

      (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

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       (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). “The PCRA petitioner bears the burden of proving

the applicability of one of the exceptions.”     Spotz, supra at 678 (citation

omitted).

       Here, Appellant’s judgment of sentence became final on November 17,5

2014, when he did not file a direct appeal. See 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had until November 17, 2015 to file a timely PCRA petition,

unless he pleaded and proved a timeliness exception. See 42 Pa.C.S.A. §

9545(b)(1). Hence, his current petition, filed on June 14, 2017, is untimely

on its face, and we lack jurisdiction to consider its merits, unless he pleads

and proves the applicability a timeliness exception.

       Instantly, Appellant fails to plead the applicability of any of the

timeliness exceptions to the PCRA time-bar. (See Appellant’s Brief, at 10-

35). In fact, although he acknowledges the timeliness requirements of the

PCRA, he maintains that his current petition is timely because, based on prior

PCRA counsel’s advice, he filed it after the Pennsylvania Supreme Court denied




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5 The thirtieth day, November 15, 2014, was on a Saturday, therefore his
judgment of sentence became final the following Monday. See 1 Pa.C.S.A. §
1908.

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review of his first PCRA petition. (See id. at 9, 35). This claim of timeliness

fails.

         “[T]he plain language of the PCRA statute shows that a judgment of

sentence becomes final immediately upon expiration of the time for seeking

direct review, even if other collateral proceedings are still ongoing[.]”

Commonwealth v. Callahan, 101 A.3d 118, 122 (Pa. Super. 2014); see

also 42 Pa.C.S.A. § 9545(b)(1). Additionally, “there is no statutory exception

to the PCRA time-bar applicable to claims alleging the ineffectiveness of post-

conviction counsel.” Commonwealth v. Robinson, 139 A.3d 178, 186 (Pa.

2016).

         Moreover, even if Appellant did attempt to raise a timeliness exception,

the PCRA statute provides that “[a]ny petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S.A. § 9545(b)(2). All of Appellant’s issues are

premised on an underlying claim of plea counsel’s ineffectiveness.          (See

Appellant’s Brief, at 10-35). Appellant necessarily would have been aware of

these claims prior to nearly three years after his case was in the trial court.

Therefore, even if he attempted to frame his issues as falling within one of the

statutory timeliness exceptions, he would be unable to plead and prove its

applicability where he did not file his petition within sixty days of the date he

could have presented his claims. See 42 Pa.C.S.A. § 9545(b)(2).




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       For all of these reasons, Appellant has failed to plead and prove an

exception to the PCRA time-bar, and the PCRA court properly dismissed his

petition as untimely. See Moriarty, supra at *3.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2018




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6Additionally, we note that Appellant entered a negotiated guilty plea in this
matter, which “constitutes a waiver of all nonjurisdictional defects and
defenses and waives the right to challenge anything but the legality of [the]
sentence and the validity of [the] plea.” Commonwealth v. Dixon, 161 A.3d
949, 951 (Pa. Super. 2017) (citation and internal quotation marks omitted).
Therefore, even if Appellant pleaded and proved a timeliness exception, his
challenges would be waived.

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