J-S22041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK JERMAINE BOONE                     :
                                               :
                       Appellant               :   No. 1868 MDA 2019

            Appeal from the PCRA Order Entered November 4, 2019
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001229-2015


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED JULY 06, 2020

        Appellant, Derrick Jermaine Boone, appeals, pro se, from the order

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

(“PCRA”).1 We affirm.

        On November 28, 2017, Appellant pleaded guilty to voluntary

manslaughter, aggravated assault, and person not to possess firearms.2 That

same day, the trial court sentenced Appellant to an aggregate term of

incarceration of 12 to 30 years. On December 12, 2017, the trial court filed

an amended sentencing order that clarified the period for which Appellant

would receive credit for time served prior to the entry of the plea. Appellant

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*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
2   18 Pa.C.S. §§ 2503(b), 2702(a)(4), and 6105(a)(1).
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did not file a motion for reconsideration of the sentence or a direct appeal

from the judgment.

       On April 4, 2018, Appellant filed, pro se, his first PCRA petition. In the

petition, Appellant asserted that his guilty plea was not knowing, voluntary,

and intelligent, that he was coerced into accepting the plea by his plea counsel

despite his innocence, and that his plea counsel provided ineffective assistance

of counsel.    PCRA Petition, 4/4/18, at 4, 7-8.    The PCRA court appointed

counsel to represent Appellant, and Appellant’s PCRA counsel subsequently

filed a petition to withdraw as counsel and no-merit letter pursuant to

Turner/Finley.3 On December 31, 2018, the PCRA court entered an order

granting PCRA counsel’s petition to withdraw and notifying Appellant of the

court’s intent to dismiss the PCRA petition without a hearing in 20 days

pursuant to Rule of Criminal Procedure 907.          See Pa.R.Crim.P. 907(1).

Appellant did not file a response to the Rule 907 notice, and on February 5,

2019, the PCRA court dismissed Appellant’s first PCRA petition. Appellant did

not appeal from this order.

       On May 7, 2019, Appellant filed, pro se, the instant PCRA petition. In

his second petition, Appellant alleges that there was an insufficient factual

basis for his plea, he was induced into accepting the plea by his plea counsel

despite his innocence, that his plea counsel provided ineffective assistance of


____________________________________________


3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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counsel, and that his PCRA counsel was ineffective for failing to request an

evidentiary hearing or file an appeal. PCRA Petition, 5/7/19, at unnumbered

pages 3-5. On October 2, 2019, the PCRA court filed a Rule 907 notice of its

intent to dismiss Appellant’s second PCRA petition without a hearing.

Appellant filed a pro se response to the Rule 907 notice on October 15, 2019.

On November 4, 2019, the PCRA entered an order dismissing the second PCRA

petition as untimely. Appellant filed a timely appeal of this order.4

       Appellant raises the following issues on appeal:

       1. Whether there is sufficient evidence to sustain [Appellant’s]
       conviction [] on the charge of[] voluntary manslaughter?

       2. Whether [Appellant] knowingly, voluntarily, and intelligently
       entered into a plea of guilty, when he did not understand the exact
       crime he was pleading guilty to?

       3. Whether trial counsel was ineffective in representation?

Appellant’s Brief at 2 (unnecessary capitalization omitted).            We review the

denial of a PCRA petition to determine whether the record supports the PCRA

court’s   findings    and    whether      its   decision   is   free   of   legal   error.

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018).

       Before reaching the merits of the petition, we must first consider

whether it was timely filed.        The PCRA provides that “[a]ny petition . . .,

including a second or subsequent petition, shall be filed within one year of the

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4 The PCRA court did not request that Appellant file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 10, 2020,
the PCRA court filed an opinion in which it relied on the reasons stated in its
October 2, 2019 Rule 907 notice.

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date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition

may be filed beyond the one-year time period only if the petitioner alleges and

proves one of the following three exceptions:

      (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.

Id. Any petition attempting to invoke these exceptions “shall be filed within

one year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2). “The PCRA’s time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the underlying merits of a

claim.” Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019).

      In this case, Appellant entered his guilty plea and was sentenced on

November 28, 2017, and the trial court issued an amended sentencing order

on December 12, 2017. Appellant did not file an appeal from the original or

amended sentencing order and therefore his judgment of sentence became

final on January 11, 2018. See 42 Pa.C.S. § 9545(b)(3) (“For purposes of

[the PCRA], 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 time for seeking

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the review.”); Pa.R.A.P. 903(a) (providing that a notice of appeal must filed

within 30 days from the date of entry of the order from which the appeal is

taken). The instant PCRA petition, filed on May 2, 2019, was thus untimely

as it was filed more than one year beyond the date that his conviction became

final. 42 Pa.C.S. § 9545(b)(1).

       Therefore, the PCRA court lacked jurisdiction to hear Appellant’s claims

unless Appellant pleaded and proved one of the three statutory exceptions to

the one-year time bar. Id.; Greco, 203 A.3d at 1124. Appellant did not cite

any of the three timeliness exceptions in his petition nor can any of the

allegations contained in the petition be fairly construed as attempting to

invoke the Section 9545(b)(1) exceptions.5         Accordingly, the PCRA court

properly dismissed Appellant’s PCRA petition as untimely.

       Order affirmed.




____________________________________________


5The petition is bereft of any allegations relating to newly discovered facts, a
newly recognized retroactive constitutional right, or interference by
government officials in his efforts to previously raise his PCRA claims. 42
Pa.C.S. § 9545(b)(1). While Appellant raised an ineffective assistance of
counsel claim related to the performance of appointed counsel for his first
PCRA petition, “[i]t is well-established that allegations of ineffective assistance
of counsel will not overcome the jurisdictional timeliness requirements of the
PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).
Furthermore, waiver applies to claims of PCRA counsel ineffectiveness that
could have been raised in a response to a Rule 907 notice but instead are
deferred to a serial PCRA petition. Commonwealth v. Pitts, 981 A.2d 875,
880 n.4 (Pa. 2009).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/06/2020




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