J-S68001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HAMEED CAHOON,

                            Appellant                  No. 2018 WDA 2014


                 Appeal from the PCRA Order November 12, 2014
                In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0003460-2007, CP-02-CR-0003463-
                          2007, CP-02-CR-0004767-2007


BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED NOVEMBER 04, 2016

        Appellant, Hameed Cahoon, appeals from the order denying his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

        In disposing of Appellant’s direct appeal, a prior panel of this Court set

forth the relevant facts and procedural history of this case as follows:

              On November 18, 2009, following [a] bench trial, appellant
        was convicted of one count of robbery of motor vehicle, and two
        counts each of robbery, criminal conspiracy, and access device
        fraud. Appellant’s convictions arose from three separate criminal
        episodes. On December 22, 2006, Courtney Connolly was in the
        passenger seat of her father’s vehicle at an Exxon gas station on
        Forbes Avenue in the Oakland neighborhood of Pittsburgh. While
        her father was in the station, appellant opened the driver’s door,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S68001-16


     displayed a gun, and ordered Connolly out of the car. After
     Connolly exited the vehicle, appellant drove off.

            On January 2, 2007, Byron Gold was accosted by appellant
     and Brandon Williams in the Shadyside neighborhood of
     Pittsburgh as Gold was walking to his car after work. Appellant
     held a gun to Gold’s chest. Appellant and Williams stole Gold’s
     wallet, telephone, and a bag of clothing. Gold specifically
     identified both appellant and Williams.

           On January 7, 2007, Katie Murt was approached by
     appellant and another man on Melwood Avenue in Oakland as
     Murt walked to her boyfriend’s apartment. Appellant pointed a
     gun at Murt and took her purse from her. The purse contained
     cash, a digital camera, and debit and credit cards. The robbers
     also took Murt’s cellular telephone which she was using at the
     moment of the robbery. Murt specifically identified appellant, but
     was not asked to identify the other individual at trial.

            The    Commonwealth      sought    mandatory      minimum
     sentencing at the three robbery convictions. On February 2,
     2010, appellant was sentenced to an aggregate term of 23 to 76
     years’ imprisonment with all sentences being imposed
     consecutively. The sentence was within both the sentencing
     guidelines and statutory limits. On February 3, 2010, appellant
     filed a post-sentence motion. Therein, appellant conceded that
     his sentence was within the court’s discretion, but requested that
     his sentences be run concurrently. The motion then listed
     various mitigating factors and rehabilitative needs. The motion
     also requested an arrest of judgment and a new trial based upon
     insufficient evidence. On May 19, 2010, a hearing was held on
     the post-sentence motion. At the hearing, appellant requested
     that his sentences be run concurrently, specifically suggesting an
     aggregate sentence of 15 to 30 years’ imprisonment. Appellant
     argued his youthful age (19) at the time of the offenses and the
     fact that no victim was harmed as justification for a lesser
     sentence. On June 21, 2010, the trial court denied appellant’s
     post-sentence motion.

Commonwealth v. Cahoon, 524 WDA 2011, 53 A.3d 930 (Pa. Super. filed

June 12, 2012) (unpublished memorandum at 1-3) (internal footnotes

omitted). Appellant filed an appeal to this Court, and on June 12, 2012, we

                                   -2-
J-S68001-16


affirmed Appellant’s judgment of sentence. Id. Appellant did not petition

for allowance of appeal with the Pennsylvania Supreme Court.       Therefore,

Appellant’s judgment of sentence became final on July 12, 2012. 42 Pa.C.S.

§ 9545(b)(3) (“[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.”); Pa.R.A.P. 903(a) (the notice of appeal shall be

filed within thirty days after the entry of the order from which the appeal is

taken).

       On September 9, 2014, Appellant filed the instant PCRA petition. The

PCRA court appointed counsel, and on September 24, 2014, appointed

counsel filed a motion to withdraw and a Turner/Finley1 “no-merit” letter.

On September 29, 2014, the PCRA court granted counsel’s motion to

withdraw and provided Appellant notice of its intent to dismiss the PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907.     The PCRA court

denied Appellant’s PCRA petition on November 12, 2014. Appellant filed a

timely pro se notice of appeal, and the PCRA court appointed current counsel

to represent Appellant. Both Appellant and the PCRA court have complied

with Pa.R.A.P. 1925.
____________________________________________


1
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)
(setting forth the requirements for counsel seeking to withdraw in collateral
proceedings).



                                           -3-
J-S68001-16


      On appeal, Appellant presents the following issues for this Court’s

consideration:

      Did the PCRA court err when it dismissed [Appellant’s] petition
      for post conviction collateral relief without a hearing, and allowed
      PCRA counsel to withdraw, where counsel failed to present
      evidence supporting a finding that an exception to the one-year
      limitation for filing a PCRA petition applied; and was PCRA
      counsel ineffective for filing a Turner/Finley letter where
      evidence existed showing that despite exercising due diligence to
      the extent that circumstances allowed, [Appellant] did not learn
      that the Superior Court had decided his direct appeal until within
      sixty days of filing his pro se PCRA petition?

Appellant’s Brief at 6 (bold type and full capitalization omitted).

      Our standard of review of an order denying relief under the PCRA

requires us to determine whether the decision of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014).                     “The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and may not be

ignored in order to reach the merits of the petition.        Commonwealth v.

Jones, 54 A.3d 14, 16 (Pa. 2012). A judgment of sentence “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,

                                       -4-
J-S68001-16


or at the expiration of time for seeking the review.”              42 Pa.C.S. §

9545(b)(3).

       As noted above, Appellant’s judgment of sentence became final on July

12, 2012; therefore, Appellant had until July 12, 2013, to file a timely PCRA

petition. 42 Pa.C.S. § 9545(b)(1). Appellant did not file his PCRA petition

until September 9, 2014, rendering Appellant’s petition patently untimely.

       However, an untimely PCRA petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited

exceptions to the time for filing the petition, set forth at 42 Pa.C.S. §

9545(b)(1)(i), (ii), and (iii), is met.2         A petition invoking one of these

exceptions must be filed within sixty days of the date the claim could first

have been presented. 42 Pa.C.S. § 9545(b)(2). In order to be entitled to
____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).



                                           -5-
J-S68001-16


the exceptions to the PCRA’s one-year filing deadline, “the petitioner must

plead and prove specific facts that demonstrate his claim was raised within

the sixty-day time frame” under section 9545(b)(2).             Commonwealth v.

Carr, 768 A.2d 1164, 1167 (Pa. Super 2001).

       Appellant claims that he failed to file a timely PCRA petition because

he was unaware that this Court affirmed his judgment of sentence on June

12, 2012, even though he allegedly wrote to counsel requesting information

on his appeal.      Appellant’s Brief at 14-15.3      Appellant avers that he first

learned of the June 12, 2012 decision on August 28, 2014, after he wrote to

this Court’s Office of the Prothonotary. Id. at 14-15. Appellant argues that

he acted with due diligence and filed his PCRA petition within sixty days of

learning that his judgment of sentence had been affirmed. Id. at 15.

       As   noted    above,     the    timing    requirements   of   the   PCRA   are

jurisdictional.     Jones, 54 A.3d at 16.           Moreover, the sixty-day after-

discovered facts exception applies only where the facts could not have been

ascertained through due diligence. 42 Pa.C.S. § 9545(b)(1)(ii).
____________________________________________


3
  Attached to Appellant’s Pa.R.A.P. 1925(b) statement are copies of letters
Appellant allegedly sent to counsel between 2012 and 2014 requesting
information on the status of his direct appeal. Pa.R.A.P. 1925(b) statement,
9/29/15, at Exhibits 1-6. These letters bear no date stamps or indication of
the dates the documents were drafted other than the dates Appellant
assigned to them. Curiously, contained within the text of the documents are
exhibit numbers. These exhibit numbers correspond sequentially with the
exhibit numbers later placed on the attachments to Appellant’s Pa.R.A.P.
1925(b) statement, despite these documents being allegedly created more
than two years before the Pa.R.A.P. 1925(b) statement was drafted.



                                           -6-
J-S68001-16


     In its Pa.R.A.P. 1925(a) opinion, the PCRA court notes that Appellant’s

PCRA petition is untimely, and addressed this issue as follows:

     Appellate counsel argues, yet fails to specify or plead which
     exception is applicable to the time bar limitations. The record
     does not disclose any governmental interference. Second, there
     are no facts unknown to [Appellant] which could not have been
     ascertained by the exercise of due diligence. Finally, there is no
     allegation of a constitutional right which was recognized by
     either the U.S. or Pennsylvania Supreme Court after the time
     limit which has been held by such court to apply retroactively.
     [Appellant’s] argument that his attorney failed to notify him of
     the dismissal of his Superior Court Appeal could have be[e]n
     discovered[,] just as he ultimately [did] with so much as a
     phone call or letter to his attorney or prothonotary much sooner
     than the date of his eventual discovery of this fact.

PCRA Court Opinion, 12/4/15, at 4.

     We agree with the PCRA court that Appellant failed to satisfy the after-

discovered-facts exception to the PCRA time-bar. Had Appellant exercised

due diligence, after counsel allegedly failed to respond to his inquiries

regarding the status of his appeal in 2012, he could have, as the PCRA court

concluded, contacted this Court much sooner than he eventually did.        If

Appellant had acted with this reasonable level of diligence, he would have

discovered that this Court affirmed his judgement of sentence more than

two years before he filed his September 9, 2014 PCRA petition. Because the

PCRA court’s decision is supported by the record, we affirm.

     Order affirmed.




                                     -7-
J-S68001-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/4/2016




                          -8-
