J-S08026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

SHANE NICHOLAS SHIPLEY,

                        Appellant                   No. 1065 WDA 2017


             Appeal from the PCRA Order entered July 3, 2017,
             in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0001648-2015,
            CP-26-CR-0001998-2011, CP-26-CR-0002199-2011,
           CP-26-CR-0002260-2011, & CP-26-CR-0002355-2011


BEFORE: LAZARUS, J., KUNSELMAN, J. and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.                          FILED MARCH 9, 2018

     Appellant, Shane Nicholas Shipley, appeals pro se from the order

denying his first timely petition for relief pursuant to the Post Conviction

Relief Act. 42 Pa.C.S.A. §§ 9541-46. We affirm.

     Appellant’s most recent criminal charges arose after he, along with two

others, conspired to rob a local pool hall.   Appellant entered the pool hall

wearing a child’s Spiderman mask and pointed what the victim believed to

be a handgun at her. Appellant took two cash drawers and fled the scene

with his two cohorts.    Subsequent police investigation led to Appellant’s

arrest. The Commonwealth charged Appellant at CP-26-CR-0001648-2015

with robbery and related charges.




*Former Justice specially assigned to the Superior Court.
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      On May 2, 2016, Appellant entered into a negotiated plea to robbery

graded as a third-degree felony. On May 19, 2016, the trial court sentenced

Appellant in accordance with the plea agreement.           Appellant’s sentence

included, in pertinent part, the following:

            THE COURT:        At Number 164[8] of 2015 . . . [Appellant
         shall undergo]       imprisonment at a state correctional
         institution for a   period of not less than two and one-half
         years nor more      than five years. . . . This sentence is to
         run concurrent      with 1988, 2199, 2260 and 2355 all of
         2011.

N.T., 5/19/16, at 4-5. The written order that appears in the certified record

contains the same sentencing terms.

      Appellant did not file a direct appeal. On February 27, 2017, Appellant

filed a timely PCRA petition.       Within this petition, he claimed that his

sentence was illegal. According to Appellant, he was had been informed by

the Pennsylvania Department of Corrections that his entire back time for his

parole violations at the 2011 dockets had to be served before he began

serving his 2 ½ to 5 year sentence, even though his written sentencing

order stated that his 2016 sentence was to run concurrent to them.

Appellant also asserted that his counsel had abandoned him.

      On March 2, 2017, the PCRA court appointed counsel.          On April 18,

2017, PCRA counsel filed a motion to withdraw and a “no-merit” letter

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). In

this filing, PCRA counsel averred that the record refuted Appellant’s

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ineffective assistance claim, and that Appellant’s sentence was legal,

because it did not exceed the applicable statutory maximum.

       On June 1, 2017, the PCRA Court issued Pa.R.Crim.P. 907 notice of its

intent to dismiss Appellant’s petition without a hearing. 1 Appellant did not

file a response.2      By order entered July 3, 2017, the PCRA court denied

Appellant’s latest PCRA petition.          This timely appeal followed.   By order

entered July 24, 2017, the PCRA court ordered Appellant to file within 21

days a concise statement of errors complained of on appeal. In this order,

the trial court warned Appellant “any issue not properly included in the

statement, timely filed and served pursuant to [Pa.R.A.P. 1925](b), shall be

deemed waived.”

       Before reaching Appellant’s claims raised on appeal, we must first

determine whether they are properly before us. On August 28, 2017, the

PCRA court filed a statement in lieu of opinion pursuant to Pa.R.A.P. 1925(a)

in which it stated that Appellant failed to comply with its previous order

ordering him to file a Pa.R.A.P. 1925(b) statement. Given this failure, the
____________________________________________


1By order entered August 30, 2017, the PCRA court granted PCRA counsel’s
motion to withdraw.

2 In his brief, Appellant asserts that, on June 11, 2017, he had sent a
request to extend the time in which to respond, and sent his objections to
the court’s Rule 907 notice approximately one week later, and that PCRA
counsel misunderstood his sentencing claim. These documents do not
appear in the certified record.




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PCRA court opined that any issue raised by Appellant is waived. We agree.

See generally, Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Allshouse,

969 A.2d 1236 (Pa. Super. 2009).       We therefore affirm the PCRA court’s

order denying Appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2018




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