J-A27015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL J. WARE                            :
                                               :
                       Appellant               :   No. 1256 EDA 2019

               Appeal from the PCRA Order Entered April 1, 2019
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000029-2015


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                              FILED JANUARY 31, 2020

        Michael J. Ware appeals from the April 1, 2019 order dismissing as

untimely his second petition under the Pennsylvania Post-Conviction Relief Act

(“PCRA”). We affirm.

        This Court aptly summarized the underlying factual history of this case

in an unpublished memorandum affirming Appellant’s judgment of sentence:

        On August 30, 2014, Appellant allowed his unlicensed 15-year-old
        daughter (“J.W.”) to drive his vehicle with another minor, R.A.K.
        J.W. and R.A.K. subsequently picked up four teenage boys as
        passengers. J.W. lost control of the vehicle on a turn and crashed.
        Three of the teenage boys died as a result of the accident.

        [Appellant] stood at the scene of [the] vehicular accident that left
        three teenage boys dead and told police that he did not know his
        underage daughter took his vehicle. Despite his daughter taking
        full responsibility for the accident, Appellant did not confess to
        investigating officers that he had given his underage daughter
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      permission to drive his vehicle. It was not until two and a half
      months after the accident when police learned the truth [from a
      written statement provided by J.W.].

      ....

      On July 9, 2015, Appellant pled guilty to [three counts of
      involuntary manslaughter and three counts of recklessly
      endangering another person (“REAP”)] in exchange for seven
      additional charges against him being nolle prossed.

      ....

      On August 20, 2015, after reviewing Appellant’s pre-sentence
      investigation (“PSI”) report, a letter from Appellant, letters from
      Appellant’s friends and family, and letters from the victims’
      families, the trial court sentenced Appellant to 20-40 months’
      incarceration for each of his involuntary manslaughter convictions
      and 6-24 months’ incarceration for each of his REAP convictions.
      The court imposed the sentences consecutively, which resulted in
      an aggregate sentence of 78-192 months’ (6½-16 years’)
      incarceration.

Commonwealth v. Ware, 154 A.3d 850 (Pa.Super. 2016) (unpublished

memorandum at 1-3).

      Appellant filed a direct appeal from his judgment of sentence, which this

Court affirmed on July 11, 2016. Appellant did not appeal to the Pennsylvania

Supreme Court. The PCRA court denied Appellant’s first PCRA petition on July

12, 2017, after his first PCRA counsel withdrew representation under

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).           Appellant did not

appeal.

      Appellant filed the instant petition on October 30, 2018, arguing in

pertinent part that his sentence is illegal. Specifically, Appellant asserts that

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he was entitled to a Recidivism Risk Reduction Incentive (“RRRI”) sentence

pursuant to 61 Pa.C.S. § 4505. The PCRA court advised Appellant of its intent

to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907,

and Appellant declined to file a response. On April 1, 2019, the PCRA court

dismissed Appellant’s PCRA petition as untimely.        Appellant filed a timely

notice of appeal, and both Appellant and the PCRA complied with the

requirements of Pa.R.A.P. 1925. The matter is now ripe for our review.

      In pertinent part, Appellant’s claim is that his sentence is illegal because

he was allegedly eligible for a RRRI sentence, but neither his counsel nor the

sentencing court    realized   this oversight at the      time   of sentencing.

Accordingly, Appellant requests that he be resentenced consistent with the

RRRI statutory scheme. See Appellant’s brief at 9-10.

      Our standard and scope of review in the context of a petition for relief

pursuant to the PCRA is well-established under existing precedent.            Our

standard of review is “limited to determining whether the PCRA court’s findings

are supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013). Furthermore, “[o]ur 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 PCRA court level.”

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). We apply a de

novo standard of review with regard to the PCRA court’s legal conclusions.

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).


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      However, before we may address the underlying merits of Appellant’s

PCRA petition, we must assess whether the petition is timely, or subject to

one of the exceptions to the timeliness requirements under the PCRA. See

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he

PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a

petition if it is not timely filed.”). In pertinent part, the PCRA provides as

follows regarding timeliness:

      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

      ....

         (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

      ....

      (3) For purposes of this subchapter, 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.

42 Pa.C.S. § 9545(b).     In reviewing these statutory provisions, it is also

important to note that “there is no generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions.”

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

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        Appellant’s judgment of sentence became final for the purposes of PCRA

timeliness on August 10, 2016, when Appellant’s time in which to seek review

before the Pennsylvania Supreme Court in his direct appeal expired.        See

Pa.R.A.P. 903(a) (appeals must be taken within 30 days from the entry of the

appealable order); see also 42 Pa.C.S. § 9545(b)(3). Thus, to be timely, the

instant PCRA petition would have to have been filed on or before August 10,

2017.      However, Appellant’s PCRA petition, filed on October 30, 2018, is

facially untimely by more than one year.

        Appellant claims that the exception at § 9545(b)(1)(ii) respecting newly

discovered material facts should apply in this case due to an unsupported

allegation that Appellant’s first PCRA counsel “effectively abandoned him

during the [first] PCRA proceeding by wrongly conceding” that Appellant was

not RRRI eligible. See Appellant’s brief at 23-24; see also Letter from PCRA

Counsel, 4/18/17, at 3 (“The defendant is not RRRI eligible.”). We disagree.

        The timeliness exception set forth at § 9545(b)(1)(ii) has two operative

components, which must both be alleged and proved in order to establish this

exception to PCRA timeliness.     See Commonwealth v. Brown, 111 A.3d

171, 176 (Pa.Super. 2015). Specifically, the petitioner must establish that:

(1) the facts upon which the claim was predicated were unknown; and (2) the

facts could not have been ascertained by the exercise of due diligence. See

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007).                 In this

context, “due diligence demands that the petitioner take reasonable steps to


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protect his own interests and explain why he could not have learned the new

facts earlier with the exercise of due diligence.” Commonwealth v. Diggs,

___ A.3d ___, 2019 WL 5090973, at 3 (Pa.Super. 2019). Furthermore, a

PCRA petition invoking one of these exceptions must be filed within sixty days

of the date the claims could have been presented. 42 Pa.C.S. § 9545(b)(2).1

       Appellant has attempted to cast PCRA counsel’s statement regarding his

RRRI eligibility as the functional equivalent of abandonment by counsel, which

our Supreme Court has held is applicable in the context of § 9545(b)(1)(ii).

See Bennett, supra at 1274.             Given that Appellant’s first PCRA counsel

followed the correct procedure to withdraw her representation of Appellant



____________________________________________


1 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) was amended to provide
that any PCRA petition invoking a timeliness exception must be filed within
one year of the date the claim first could have been presented. In relevant
part, the amendment states that “it shall apply to claims arising one year
before the effective date of this section or thereafter.” See 2018 Pa. Legis.
Serv. Act 2018-146 (S.B. 915), at § 3. Based upon the limited factual history
presented by Appellant, it is somewhat unclear which version of this statute
should be applied to Appellant’s PCRA petition. The letter from Appellant’s
PCRA counsel disclaiming his RRRI eligibility was attached to her April 18,
2017 petition to withdraw. Although the certified record is silent as to when
Appellant received any documentation regarding the filings from PCRA
counsel, the record before us indicates that Appellant received a copy of the
PCRA court’s order dismissing his petition via certified mail on July 18, 2017.
See Order, 7/12/17, at 1. In pertinent part, Appellant makes no argument
regarding when he received notice of this allegedly “new” information. Based
on the record before us, Appellant’s instant claim arose—at the latest—on July
18, 2017, which does not fall within the one-year lookback period established
by the General Assembly. Therefore, the prior version of § 9545(b)(2) applies
to this case, which set a time limit of sixty days for PCRA claims based upon
newly discovered facts. This distinction does not affect the outcome of this
case, as discussed further infra.

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under Turner/Finley, Appellant’s abandonment claim rings hollow.             See

Appellant’s brief at 24 (conceding first PCRA counsel “did make some minimal

effort to examine [Appellant’s] case and withdraw from representation”).

      Even assuming, arguendo, that Appellant’s discovery of PCRA counsel’s

allegedly incorrect legal conclusion constitutes a newly discovered fact for the

purposes of § 9545(b)(1)(ii), Appellant has offered no salient discussion of

when and how he learned about his alleged RRRI eligibility and first PCRA

counsel’s “abandonment” by failing to press that claim. Prior PCRA counsel’s

letter disclaiming Appellant’s RRRI eligibility was sent on April 18, 2017, and

Appellant’s second PCRA petition was not filed until October 30, 2018. In his

briefing before this Court, Appellant’s entire discussion of this eighteen-month

latency period spans a single sentence: “While his current PCRA petition was

not filed within one year of his sentencing becoming final, he has filed it within

60 days of learning of his PCRA counsel’s total abdication of her responsibility

to represent him, and thus it is timely.” Appellant’s brief at 23. Petitioners

alleging abandonment under § 9545(b)(1)(ii) must still comply with

§ 9545(b)(2) by presenting the claim within the appropriate time period. See

Commonwealth v. Williams, 21 A.3d 236, 242-43 (Pa.Super. 2011).

      In pertinent part, Appellant did not allege or demonstrate that he has

acted with due diligence in advancing this claim, and, thus, he failed to satisfy

the requirements of § 9545(b)(1)(ii). See Commonwealth v. Yarris, 731

A.2d 581, (Pa. 1999) (holding that petitioner does not satisfy § 9545(b)(1)(ii)


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where “he makes no attempt to explain why the information . . . could not,

with the exercise of due diligence, have been obtained much earlier”); see

also Commonwealth v. Vega, 754 A.2d 714, 718 (Pa.Super. 2000) (holding

that petitioner does not satisfy § 9545(b)(1)(ii) when he fails to provide the

date on which he learned of the newly discovered facts).

       We conclude that Appellant has failed to satisfy the timeliness exception

at 42 Pa.C.S. § 9545(b)(1)(ii).2           Accordingly, we affirm the trial court’s

dismissal of Appellant’s second PCRA petition as untimely.

____________________________________________


2 Appellant has argued that our Supreme Court’s holding in Commonwealth
v. Holmes, 933 A.2d 57, 65-66 (Pa. 2007), stands for the proposition that
Appellant’s illegal sentence may be corrected pursuant to the sentencing
court’s “inherent authority” even in the absence of jurisdiction under the
PCRA. See Appellant’s brief at 12. Appellant has greatly mischaracterized
the procedural posture of the Supreme Court’s holding in Holmes. In relevant
part, the appeal in Holmes did not result from a petitioner seeking
modification of an allegedly illegal sentence, but was a Commonwealth appeal
from the sentencing court’s exercise of its “inherent power” to correct a patent
error in its sentencing order, e.g., sentencing the defendant to a new sentence
after a parole violation instead of recommitting him for the remainder of his
original sentence. Id. at 59-60. Instantly, the sentencing court has taken no
such action and there has been no exercise of “inherent authority” by the
sentencing court. Thus, Holmes is simply inapposite to the circumstances of
this case. The Supreme Court’s holding in Holmes did nothing to alter the
basic principle that the PCRA is “the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies for the same
purpose . . . .” 42 Pa.C.S. § 9542. Moreover, the Supreme Court has explicitly
stated that “[a]lthough legality of sentence is always subject to review within
the PCRA, claims must still satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (emphasis added); see also Commonwealth v. Jackson, 30 A.3d
516, 522 (Pa.Super. 2011) (“[W]e have found no authority wherein the
appellate courts of this Commonwealth have recognized a PCRA court’s
inherent jurisdiction to consider a claim filed after the expiration of the PCRA



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       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




____________________________________________


filing period.”). The only arguably on-point citations offered by Appellant are
to unpublished memoranda that were filed prior to May 2, 2019, which is a
violation of this Court’s procedures. See Internal Operating Procedures of the
Superior Court of Pennsylvania, § 65.37(B) (“An unpublished memorandum
decision filed prior to May 2, 2019, shall not be relied upon or cited by Court
or a party in any other action or proceeding . . . .”). Overall, Appellant’s
discussion of this novel argument is unavailing.

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