J-S56026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FRANK NICHOLS

                            Appellant                    No. 566 MDA 2014


                 Appeal from the PCRA Order of March 6, 2014
             In the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001200-2011


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY WECHT, J.:                         FILED SEPTEMBER 12, 2014

                                                  March 6, 2014 order that

dismissed his petition for relief filed pursuant to the Post Conviction Relief

                                §§ 9541-46. We affirm.

       The PCRA court summarized the factual and procedural history of this

case as follows:

       On October 27, 2011, [Nichols] pled guilty in the above-
       captioned case to one count of aggravated assault by vehicle
       while driving under the influence, one count of driving under the
       influence, and one count of driving with a suspended or revoked
       license.[1] In exchange[,] the other charges pending against
       [Nichols] were nolle prossed, and the parties agreed to a 3 to 6
       year sentence. These charges arose on January 13, 2011 when
       [Nichols], while driving under the influence of alcohol, drove into
____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       75 Pa.C.S.A. §§ 3735.1, 3802(c), and 1543(b)(1), respectively.
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         injury. [Nichols] was represented by Jill Spott, Esq.

         On August 15, 2012, [Nichols] filed a Petition for Post Conviction
         Collateral Relief. Kurt Lynott, Esq. was appointed to represent
         [Nichols]. On May 21, 2013, Mr. Lynott filed a Motion to
         Withdraw as Counsel Pursuant to a Turner-Finley[2] Letter. On
         October 31, 2013, this motion was granted and this court issued
         a Notice of Intent to Dismiss the PCRA petition. On December
         12, 2013, the petition was dismissed.

         On November 20, 2013, [Nichols] filed a second PCRA petition
         [after he received his October 23, 2013 denial of parole].

PCRA Court Memorandum and Notice of Intent to Dismiss, 1/30/2014, at 1-

2.

         On January 30, 2014, the PCRA court filed a memorandum and its

notice of intent to dismiss the second PCRA petition pursuant to Pa.R.Crim.P.

907. On March 6, 2014, the PCRA court dismissed the petition. 3 On March

24, 2014, Nichols filed a notice of appeal from the order dismissing his

second petition. The PCRA court ordered Nichols to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and Nichols

timely complied. The trial court relied upon its January 30, 2014 explanation

of its                                           .

         Nichols presents four issues for review:

____________________________________________


2
    See Commonwealth v. Turner, 544 A.2d 927                       (Pa.   1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
      While the PCRA
Nichols to the notice of intent to dismiss, no such response was docketed nor
does a response appear in the certified record.



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       1. Did the Lower Court erroneously dismiss [Nichols ] PCRA
          Petition without considering Newly Discovered Evidence?

       2. Was [Nichols ] Guilty Plea Unlawfully Induced Because of a
          Breach of Plea Agreement?

       3. Did the Commonwealth violate the laws of Pennsylvania and
          United States Constitution?

       4. Did the Lower Court commit Governmental Obstruction?




       When reviewing a PCRA                         of a PCRA petition, we must



and whether the determination is free of legal error.            Unless the PCRA

                                 record support, we do not disturb those findings.

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011).
                                                           4
                                                               we must determine

whether Nichols was permitted to file his second petition. A PCRA court may

not entertain a PCRA petition while a prior petition is on appeal.

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).                 Recently, our

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4
       Normally, a challenge to continued confinement that does not attack
the conviction or sentence would not be cognizable under the PCRA. See
Commonwealth             Brian, 811 A.2d 1068, 1070 (Pa. Super. 2002).
Further, a challenge to a decision by the parole board is generally within the
jurisdiction of the Commonwealth Court. See Commonwealth v. Camps,
772 A.2d 70, 74-75 (Pa. Super. 2001). However, because Nichols has not
                                                                        to his
continued confinement, but as an unlawfully induced guilty plea, it is
cognizable under the PCRA, see 42 Pa.C.S.A. § 9543(a)(2)(iii), and this
Court may consider the appeal.



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Supreme Court declined to extend Lark to a case in which the PCRA court

held one PCRA petition in abeyance while ruling upon a second petition.

Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012). While not directly on

point, Porter indicates that, if a first petition is not yet appealed, the PCRA

court may consider a second petition, provided that it was timely filed.
                                                               5
Thus, the PCRA court could consider Ni

       However, the petition still must be filed timely.

requirements are jurisdictional and are construed strictly. Garcia, 23 A.3d

at 1061. To be timely, a petition must be filed within one year of the date

the                                              ame final.   42 Pa.C.S.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

the review.                       9545(b)(3).

       Nichols was sentenced on December 14, 2011.         Because Nichols did

not file a direct appeal, his judgment of sentence became final thirty days

after sentence was imposed, at the expiration of the time period to file an
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5

first petition. A subsequent petition can be considered an amendment to a
prior petition. Leave to amend should be freely permitted by a PCRA court,
but leave of the court to do so must be sought and received before
amendment an amendment can be filed.               See Commonwealth v.
Baumhammers, 92 A.3d 708, 730 (Pa. 2014). Nichols neither sought nor
was granted permission to amend his first petition. Therefore, his second
petition was not an amendment to his first petition.



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appeal.     See Pa.R.A.P. 903(a).        Therefore, Nichols had until on or about

January 14, 2013 to file a timely petition.

       Nichols filed the instant second petition on November 20, 2013, which

was facially untimely.      However, in his petition, Nichols invoked the newly

discovered evidence exception to the PCRA timeliness requirement. See 42

Pa.C.S.A. § 9545(b)(1)(ii).           Specifically, Nichols argued that his plea

agreement was unlawfully induced and that he only agreed to the plea

because the Commonwealth agreed not to oppose parole when he became

eligible.   Nichols further alleges that he could not have known about the



before the parole board and received its decision.          Finally, Nichols claims

that he has filed the instant PCRA petition within sixty days of the discovery

of this evidence. See                            -9; PCRA Petition, 11/20/2013, at

11.6

       One exception to the PCRA time bar is when the petitioner pleads and

proves that 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                        9545(b)(1)(ii).   When a petitioner invokes this

exception, the petition must be filed within sixty days of when the claim
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6
       Nichols also asserted in his PCRA petition that his trial counsel was
ineffective for assuring him that the Commonwealth would not oppose his
parole. PCRA Petition, 11/20/2013, at 9. However, Nichols has not argued
this issue in his brief and, it is therefore waived.



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could have been presented.      42 Pa.C.S.A. §                              he

PCRA squarely places upon the petitioner the burden of proving an untimely

petition fits within [the] exception[].    Commonwealth v. Jones, 54 A.3d

14, 17 (Pa. 2012).

      To be able to find the second petition timely, Nichols must plead and

prove that he has discovered new evidence.        Here, Nichols relies upon his

allegation that the Commonwealth, as part of the plea agreement, promised



allegation. At the guilty plea colloquy, the Commonwealth summarized the

                                          ed an agreed-upon sentence of three



10/27/2011, at 2.    The trial court also reviewed the plea agreement with

Nichols in the following exchange:

      Q. [THE COURT]                        sic] a plea agreement has
      been reached here and it is as follows. That you will plead guilty
      to one count of aggravated assault by vehicle with DUI, a
      separate count of driving under the influence, and then finally
      driving while under suspension while DUI related.             The
      Commonwealth will drop all remaining charges against you and
      that they are recommending that I impose a sentence, a
      minimum of three years and a maximum of six years. Is that
      your understanding of the plea agreement?

      A. [NICHOLS]      Yes, sir.

      Q.    And you understand that if I find I cannot go along with
      the plea agreement and I accept the plea I will allow you to
      withdraw the plea and you may proceed to trial on all charges.

      A.    Yes.



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      Q.   However, if I accept the plea the other alternative I have
      would be to sentence you to three to six years.         Do you
      understand that?

      A.     Yes.

                                    *    *    *

      Q.     And were any other promises made to you in return for

      record?

      A.     No.

Id. at 4-6.        Further, the written plea colloquy reflects that the only

agreement was to the sentence Nichols was to receive. Guilty Plea Colloquy,



detail any plea agreement

Commonwealth would not oppose a 3-



newly discovered evidence that demonstrated the unlawfully induced nature

of the plea.    Such claim necessarily is predicated upon the existence of a

promise by the government. Without the promise, the information he now

possesses cannot factually or logically be considered newly discovered

evidence for PCRA purposes. Based upon the above, it is quite clear that no



claim that the parole board decision constitutes newly discovered evidence

must fail.   He has not met his burden to prove that the newly discovered

evidence exception applies.




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      Nichols also argues that, because the PCRA court waited until

December 12, 2013 to dismiss his first PCRA petition, he has satisfied the

government interference exception to the PCRA time bar. Nichols provides

no support for this proposition. A petitioner in Commonwealth v. Davis,

816 A.2d 1129, 1134 (Pa. Super. 2003), attempted to make a similar

argument. In that case, we held that the government interference exception

was not available to excuse an untimely second PCRA petition even though it

could not have been filed during the pendency of an appeal from the first

PCRA petition. Id. Similarly, here, Nichols may not invoke that exception to

escape the time bar for the instant PCRA petition by complaining that the

PCRA court delayed in dismissing his first petition.

      Consequently, as Nichols has not been able to plead and prove any

exception to the PCRA time bar, his PCRA petition was filed untimely and we

are without jurisdiction to evaluate its merits.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2014




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