J-S01031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    WILLIAM SCOTT BEATTY, JR.                  :
                                               :
                      Appellant                :       No. 1298 MDA 2017

                   Appeal from the PCRA Order July 21, 2017
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000842-2010


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED FEBRUARY 23, 2018

        Appellant, William Scott Beatty, Jr., appeals from the order entered in

the Lebanon County Court of Common Pleas, which granted in part and

denied in part his second petition filed pursuant to the Post Conviction Relief

Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On April 5, 2011, Appellant entered an open nolo contendere plea to 87

charges, including burglary, robbery, corrupt organizations, and related

offenses.    The court sentenced Appellant on May 18, 2011, to 497-994

months’ incarceration, plus fines, costs, and restitution. Appellant sought no

direct review. So, the judgment of sentence became final on June 17, 2011.
____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546
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Instead, on May 26, 2011, Appellant filed his first pro se PCRA petition. The

PCRA court appointed counsel, and subsequently denied Appellant PCRA

relief on April 8, 2013.    On February 4, 2014, this Court vacated and

remanded. See Commonwealth v. Beatty, 97 A.3d 792 (Pa.Super. 2014)

(unpublished memorandum).        On remand, the PCRA court conducted a

hearing on July 29, 2014, and denied Appellant’s petition on June 24, 2015.

This Court affirmed on February 5, 2016. See Commonwealth v. Beatty,

141 A.3d 587 (Pa.Super. 2016) (unpublished memorandum).

      On March 21, 2016, Appellant filed his second, current pro se PCRA

petition.   The PCRA court appointed counsel, who filed an amended PCRA

petition and supplemental amended PCRA petition. In his petition, Appellant

raised several new claims of ineffective assistance of counsel. Specifically,

Appellant asserted, inter alia, first PCRA counsel failed to file in our Supreme

Court a petition for allowance of appeal from this Court’s February 5, 2016

decision, despite Appellant’s request.

      On August 25, 2016, the PCRA court conducted an evidentiary hearing

and heard testimony from Appellant and first PCRA counsel.            Appellant

testified he contacted first PCRA counsel after Appellant received this Court’s

February 5, 2016 memorandum, to tell counsel Appellant wished to seek

allowance of appeal in the Pennsylvania Supreme Court.        Appellant stated

first PCRA counsel failed to seek further review, despite Appellant’s request.

First PCRA counsel testified he did not receive this Court’s February 5, 2016


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memorandum until March 21, 2016, after expiration of the 30-day period for

filing a petition for allowance of appeal in our Supreme Court. Counsel said

he explained in a letter to Appellant dated March 24, 2016, that counsel had

received this Court’s decision only days ago and understood Appellant would

have wanted to seek allowance of appeal in our Supreme Court had counsel

learned of this Court’s decision earlier.          First PCRA counsel stated he

believed Appellant generally wished to appeal any adverse decisions from

the denial of his first PCRA petition, although Appellant did not expressly ask

counsel to seek allowance of appeal from this Court’s February 5, 2016

decision.

       On July 21, 2017, the PCRA court granted in part Appellant’s petition

and reinstated his right to file in our Supreme Court a petition for allowance

of appeal nunc pro tunc from this Court’s February 5, 2016 decision.2 The

PCRA court denied Appellant’s petition in all other respects. Appellant filed a

timely notice of appeal from that decision in this Court on August 18, 2017.

The PCRA court ordered Appellant on August 23, 2017, to file a concise

statement of errors complained of on appeal per Pa.R.A.P. 1925(b);

Appellant timely complied on August 31, 2017.

       Appellant raises the following issues for our review:

            WHETHER       [FIRST]      PCRA      COUNSEL   FAILED   TO
____________________________________________


2Appellant obtained a stay on his petition for allowance of appeal while this
Court resolved the present appeal.



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         ADEQUATELY ARGUE AT THE PCRA HEARING THAT
         APPELLANT HAD REQUESTED THAT HIS TRIAL COUNSEL
         FILE AN APPEAL ON HIS BEHALF?

         WHETHER    [FIRST]  PCRA     COUNSEL    FAILED TO
         ADEQUATELY ARGUE THAT APPELLANT HAD REQUESTED
         TRIAL COUNSEL TO FILE POST-SENTENCE MOTIONS AND
         CHALLENGE THE VALIDITY OF HIS SENTENCE, UPON
         APPELLANT’S [REQUEST], AT HIS PCRA HEARING?

         WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE IN
         HIS BRIEF TO THE SUPERIOR COURT THAT APPELLANT
         HAD REQUESTED TRIAL COUNSEL TO FILE A DIRECT
         APPEAL AND THAT TRIAL COUNSEL FAILED TO DO SO[?]

         WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE AT
         THE PCRA HEARING THAT TRIAL COUNSEL FAILED TO
         LOOK INTO CHANGES FROM THE ORIGINAL INFORMATION
         AND THE AMENDED INFORMATION THAT WAS FILED, AND
         IN RETURN, FILE A MOTION ON APPELLANT’S BEHALF[?]

         WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE AT
         THE PCRA HEARING THAT TRIAL COUNSEL FAILED TO
         PROVIDE APPELLANT WITH PERMISSIBLE RANGES IN
         SENTENCING AND FINES[?]

         WHETHER [FIRST] PCRA COUNSEL FAILED [TO ARGUE AT
         THE PCRA HEARING THAT TRIAL COUNSEL FAILED] TO
         FILE A MOTION FOR SEVERANCE[?]

         WHETHER [FIRST] PCRA COUNSEL FAILED TO ARGUE
         THAT  APPELLANT’S   PLEA   WAS   NOT KNOWING,
         VOLUNTARY AND INTELLIGENTLY MADE[?]

(Appellant’s Brief at 4-5).

      Our standard of review of the denial of a PCRA petition is limited to

examining    whether    the   evidence    of   record    supports    the     court’s

determination    and    whether   its    decision   is   free   of   legal    error.

Commonwealth v. Conway, 14 A.3d 101 (Pa.Super. 2011), appeal denied,


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612 Pa. 687, 29 A.3d 795 (2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).        We give no such deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190 (Pa.Super. 2012). Traditionally, credibility issues are resolved by

the trier of fact who had the opportunity to observe the witnesses’

demeanor.     Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79

(1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999).

Where the record supports the PCRA court’s credibility resolutions, they are

binding on this Court. Id.

      Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). 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).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for 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


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petition must allege and the petitioner must 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

         (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).    Additionally, a PCRA petitioner must

present his claimed exception within sixty days of the date the claim first

could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of

the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the [PCRA] court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      The timeliness exception set forth in Section 9545(b)(1)(ii) requires a

petitioner to 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. Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,


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1271 (2007).    Due diligence demands that the petitioner take reasonable

steps to protect his own interests.    Commonwealth v. Carr, 768 A.2d

1164, 1168 (Pa.Super. 2001). In other words, the “new facts” exception at:

         [S]ubsection (b)(1)(ii) has two components, which must
         be alleged and proved.      Namely, the petitioner must
         establish that: 1) the facts upon which the claim was
         predicated were unknown and 2) could not have been
         ascertained by the exercise of due diligence. If the
         petitioner alleges and proves these two components, then
         the PCRA court has jurisdiction over the claim under this
         subsection.

Bennett, supra at 395-96, 930 A.2d at 1272 (internal citations omitted)

(emphasis in original).

      A common allegation of ineffective assistance of counsel, even if cast

in the language of a statutory exception, does not generally establish

jurisdiction over an otherwise untimely PCRA petition.     Gamboa-Taylor,

supra at 80, 753 A.2d at 785.       In rare instances, the law will allow a

petitioner to proceed with a second, albeit untimely, PCRA petition, where

petitioner timely asserts the “after-discovered facts exception” under 42

Pa.C.S.A. § 9545(b)(1)(ii), claiming specific abandonment of counsel on a

prior appeal. See Bennett, supra at 399-400, 930 A.2d at 1274.

      Instantly, Appellant’s judgment of sentence became final on June 17,

2011, upon expiration of the 30-day period to file a notice of appeal in this

Court. See Pa.R.A.P. 903(a). Appellant filed his second and current pro se

PCRA petition on March 21, 2016, which is patently untimely.          In his

petition, Appellant alleged several new claims of ineffective assistance of

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first PCRA counsel, including a claim that first PCRA counsel failed to file in

our Supreme Court a petition for allowance of appeal from this Court’s

February 5, 2016 decision, despite Appellant’s request.          The PCRA court

considered the merits of Appellant’s second PCRA petition and granted relief

in part by reinstating Appellant’s appeal rights nunc pro tunc from the denial

of his first PCRA petition.3 The PCRA court denied Appellant’s PCRA petition

in all other respects.

       What is properly before us in this appeal is the PCRA court’s decision

to deny relief on the remaining generic claims of ineffective assistance of

first PCRA counsel, for which Appellant failed to assert any of the exceptions

to the PCRA time-bar.           See Gamboa-Taylor, supra; 42 Pa.C.S.A. §

9545(b)(1).      Therefore, Appellant’s remaining PCRA claims were time-

barred, and the PCRA court lacked jurisdiction to review them. See Zeigler,

supra. Accordingly, we affirm. See Commonwealth v. Reese, 31 A.3d

708, 727 (Pa.Super. 2011) (en banc) (stating appellate court may affirm

order of trial court on any basis if ultimate decision is correct).




____________________________________________


3  We can only presume the court granted Appellant partial relief in light of
first PCRA counsel’s testimony and Bennett. See Bennett, supra. That
decision, however, is not before us in this appeal.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2018




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