J-S30044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL JOHN CLARK                         :
                                               :
                       Appellant               :   No. 223 WDA 2020

            Appeal from the PCRA Order Entered February 13, 2020
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000268-2009


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 10, 2020

       Appellant, Michael John Clark, appeals pro se from the February 13,

2020, order entered in the Court of Common Pleas of Jefferson County, which

dismissed Appellant’s petition filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, without an evidentiary hearing, on the

basis it was untimely filed.1 After a careful review, we affirm.


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* Former Justice specially assigned to the Superior Court.
1 Appellant filed the present appeal prematurely on January 29, 2020, before
the entry of the PCRA court’s February 13, 2020, final order denying PCRA
relief. See Pa.R.A.P. 910 (“An order granting, denying, dismissing, or
otherwise finally disposing of a petition for post-conviction relief shall
constitute a final order for purposes of appeal.”). Nevertheless, given that a
final order denying PCRA relief has been entered by the PCRA court, we decline
to quash this appeal. Rather, we will regard as done that which ought to have
been done, and consider this appeal as taken from the PCRA court’s final
order. See Pa.R.A.P. 105(a); Commonwealth v. Allen, 420 A.2d 653
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       The relevant facts and procedural history have been set forth previously

by this Court, in part, as follows:

              On December 16, 2009, [Appellant] entered a guilty plea to
       delivery of a controlled substance, 35 P.S. § 780-113(a)(30), and
       was sentenced to five years in the Jefferson County Intermediate
       Punishment Program, including 6 months’ partial confinement,
       with work release in the Jefferson County Jail. On November 2,
       2011, [Appellant] was found to be in violation of the conditions of
       his probation. The court extended his sentence in the County
       Intermediate Punishment [P]rogram for two years, including six
       additional months of partial confinement and 90 days of electronic
       monitoring. On November 14, 2012, [Appellant] was again found
       to be in violation of his probation, after which the revocation court
       re-sentenced [Appellant] to two years in the State Intermediate
       Punishment Program.
              [Appellant] appeared for yet another revocation hearing on
       June 23, 2014, at which it was determined that [Appellant] had
       been administratively expelled from the State Intermediate
       Punishment Program due to various infractions. Thereafter, the
       revocation court revoked [Appellant’s] participation in the State
       Intermediate Punishment Program, and resentenced him to four
       to fifteen years of incarceration, with credit for time served.
       [Appellant] filed a motion to reduce sentence, which the court
       denied. [A] timely appeal followed.

Commonwealth v. Clark, 1195 WDA 2014, at 1-2 (Pa.Super. filed 10/26/15)

(unpublished memorandum).

       On direct appeal, Appellant challenged the discretionary aspects of his

sentence and, after finding Appellant was not entitled to relief, a panel of this

Court affirmed Appellant’s judgment of sentence on October 26, 2015.

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(Pa.Super. 1980) (stating that we regard as done that which ought to have
been done, i.e., entry upon trial court docket of final PCRA order).




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Appellant did not file a petition for allowance of appeal with our Supreme

Court.2

       On December 2, 2019, Appellant filed a pro se document entitled “Petition

for Transcripts”3 wherein he alleged, inter alia, that his sentence was illegal.

The lower court properly treated this petition as a first PCRA petition4 and

appointed counsel to represent Appellant.

       On January 3,         2020, counsel filed   a petition   to   withdraw   his

representation, and on January 13, 2020, the PCRA court provided Appellant

with notice of its intent to dismiss Appellant’s petition without an evidentiary

hearing. The PCRA court also granted counsel’s petition to withdraw. Appellant




____________________________________________


2 On or about August 21, 2017, Appellant filed a pro se petition for writ of
habeas corpus contending the Pennsylvania Board of Probation and Parole
(“PBPP”) miscalculated his sentence. The trial court denied the petition. See
Com., Department of Corrections v. Reese, 774 A.2d 1255 (Pa.Super.
2001).

3  Although Appellant’s pro se petition was docketed in the lower court on
December 4, 2019, we shall deem it to have been filed on December 2, 2019,
when it was handed to prison authorities. See Pa.R.A.P. 121(a) (“A pro se
filing submitted by a prisoner incarcerated in a correctional facility is deemed
filed as of the date it is delivered to prison authorities for purposes of mailing
or placed in the institutional mailbox[.]”).

4 This Court has held that, notwithstanding the title of a pro se petition, the
petition falls under the auspices of the PCRA where it raises issues that are
cognizable thereunder. Commonwealth v. Taylor, 65 A.3d 462, 465
(Pa.Super. 2013). Legality of sentencing claims, such as those raised in
Appellant’s pro se petition, are cognizable under the PCRA. Commonwealth
v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999).

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filed a notice of appeal on January 29, 2020, and on February 13, 2020, the

PCRA court entered its final order denying Appellant’s PCRA petition.

      Preliminarily, we note our well-established standard of review:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is 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. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007) (citations

omitted).

            Pennsylvania law makes clear no court has jurisdiction to
      hear an untimely PCRA petition. The most recent amendments to
      the PCRA, effective January 16, 1996, provide a PCRA petition,
      including a second or subsequent petition, shall be filed within one
      year of the date the underlying judgment becomes final. 42
      Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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 time for seeking the review.”
      42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super. 2010)

(citations omitted).

             [There are] three statutory exceptions to the timeliness
      provisions in the PCRA [that] allow for the very limited
      circumstances under which the late filing of a petition will be
      excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
      petitioner must allege and prove:
             (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.

Id. at 1079-80 (citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii)).

       Any petition invoking a timeliness exception must be filed within one

year of the date the claim could have been presented.5 42 Pa.C.S.A. §

9545(b)(2). “We emphasize that it is the petitioner who bears the burden to

allege and      prove    that    one    of     the   timeliness   exceptions   applies.”

Commonwealth v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008)

(citation omitted).

       In the case sub judice, Appellant filed a direct appeal, and we affirmed

his judgment of sentence on October 26, 2015. Appellant did not file a petition

for allowance of appeal with our Supreme Court. Accordingly, his judgment

of sentence became final on or about November 26, 2015, when the thirty-

day time period for filing a petition for allowance of appeal with our Supreme


____________________________________________


5 42 Pa.C.S.A. § 9545(b)(2) previously provided that a petition invoking a
timeliness exception was required to be filed within sixty days of the date the
claim could first have been presented. However, effective December 24,
2018, the legislature amended Subsection 9545(b)(2) to read: “Any petition
invoking an exception provided in paragraph (1) shall be filed within one year
of the date the claim could have been presented.” See 42 Pa.C.S.A. §
9545(b)(2) (effective December 24, 2018). The amendment to Subsection
9545(b)(2) only applies to “claims arising on [December] 24, 2017, or
thereafter.” See id., cmt. Assuming, arguendo, the amended version is
applicable to the instant matter, as indicated infra, we conclude Appellant has
not otherwise met his burden of pleading and proving any of the timeliness
exceptions.

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Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant

had one year from that date, or until November 26, 2016, to file a timely PCRA

petition. See 42 Pa.C.S.A. § 9545(b). Accordingly, the instant PCRA petition,

which was filed on December 2, 2019, is patently untimely. See 42 Pa.C.S.A.

§ 9545(b)(1).

      This does not end our inquiry, however, as Appellant attempts to invoke

the government interference exception set forth in Subsection 9545(b)(1)(i),

as well as the “newly-discovered facts” exception set forth in Subsection

9545(b)(1)(ii).   Specifically,   as   to   Subsection   9545(b)(1)(i),   Appellant

suggests the PBPP “interfered” at his probation revocation hearing by

participating at the hearing. As to Subsection 9545(b)(1)(ii), Appellant

suggests that he was not prepared for the revocation hearing, and upon

reviewing the transcript from the June 23, 2014, hearing, it is evident to

Appellant the trial court should have inquired about Appellant’s lack of

preparation.

      To establish the government interference exception, “Appellant was

required to plead and prove that his 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....” Commonwealth v. Chester,

586 Pa. 468, 895 A.2d 520, 523 (2006) (quotation marks and quotation

omitted) (emphasis in original).


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             To establish the newly discovered fact timeliness exception
      in [Sub]section 9545(b)(1)(ii), a petitioner must demonstrate he
      did not know the facts upon which he based his petition and could
      not have learned those facts earlier by the exercise of due
      diligence.    Due diligence demands that the petitioner take
      reasonable steps to protect his own interests. A petitioner must
      explain why he could not have learned the new fact(s) earlier with
      the exercise of due diligence. This rule is strictly enforced.
      Additionally, the focus of this exception is on the newly discovered
      facts, not on a newly discovered or newly willing source for
      previously known facts.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations

and quotation marks omitted).

      In the case sub judice, Appellant’s government interference claim

relates to the PBPP’s participation during the June 23, 2014, hearing, at which

Appellant was present. Appellant has failed to explain what act or omission

by any government official is responsible for his delay in raising his claim with

regard thereto.    We are, therefore, not convinced that the government

interference exception applies. See Chester, supra.

      Further, Appellant’s “newly-discovered facts” claim relates to his alleged

discovery that he was not prepared for the June 23, 2014, hearing. However,

inasmuch as Appellant was present at the hearing, Appellant has failed to

demonstrate that he could not have discovered his “lack of preparation” earlier

by the exercise of due diligence. See Brown, supra.

      For all of the foregoing reasons, we conclude Appellant has not met any

of the timeliness exceptions. Therefore, we conclude the PCRA court properly

dismissed Appellant’s instant PCRA petition on the basis it was untimely filed.


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     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2020




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