J-S55038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

ANDRE ALLEN

                             Appellant                  No. 362 EDA 2014


                  Appeal from the PCRA Order January 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012440-2008


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED NOVEMBER 17, 2014

       Andre Allen brings this appeal from the order entered on January 7,

2014, in the Court of Common Pleas of Philadelphia County, dismissing, as

untimely, his first petition filed pursuant to Pennsylvania’s Post Conviction

Relief Act (PCRA).1         Allen argues the PCRA court erred in dismissing his

petition without a hearing and contends he properly pled and would have

been able to prove entitlement to PCRA relief. Based upon the following, we

affirm.

       The PCRA court has aptly summarized the background of this case:

       On March 20, 2009, petitioner entered a negotiated guilty plea
       to third degree murder and possession of an instrument of crime
       (PIC) [in connection with the stabbing death of Adelaide Walker.
       In exchange for the plea, the Commonwealth agreed not to
____________________________________________


1
    42 Pa.C.S. §§ 9541–9546.
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     proceed on the charge for murder of the first degree on which
     Allen was originally held for court. See Guilty Plea Hearing, N.T.,
     3/20/2009, at 13]. In accordance with the terms of the guilty
     plea, this court sentenced petitioner to consecutive prison terms
     of twenty (20) to forty (40) years on the murder bill and two-
     and-a-half (2½) to five (5) years on the PIC bill.

     Petitioner did not file post-sentence motions. Nor did he file a
     direct appeal. Instead, petitioner [mailed] a pro se Motion for
     “Reconsideration of Sentence Nunc Pro Tunc” [to the trial judge]
     on or about January 19, 2011. 1 By letter dated January 24,
     2011, this court informed petitioner that it had no jurisdiction to
     entertain his motion. (See attached Exhibits).

        ______________________________________________
        1
          In his motion, petitioner alleged that he had asked trial
        counsel to file a Motion for Reconsideration, and that
        counsel failed to do so. Petitioner also asked the court to
        consider reducing his sentence because he had “matured
        and grown extensively to be a productive law abiding
        citizen.”
        ______________________________________________

     On November 14, 2011, petitioner filed a pro se PCRA petition.
     The court appointed David Rudenstein, Esq. to represent
     petitioner. On September 18, 2012, Mr. Rudenstein filed an
     Amended PCRA Petition on his client's behalf. The
     Commonwealth thereafter filed a Motion to Dismiss.

     On January 7, 2014, after the pleadings and relevant notes of
     testimony, this court dismissed the PCRA petition as untimely.2
         ______________________________________________
         2
           The dismissal occurred no less than twenty (20) days
         after petitioner was served with notice of the forthcoming
         dismissal of his PCRA petition. See Pa.R.Crim.P. 907(a).
         ______________________________________________




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PCRA Court Opinion, 3/7/2014, at 1–2. Following the PCRA court’s dismissal

of his petition, Allen filed this timely appeal.2

       “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2014) (quotations and

citation omitted), cert. denied, 134 S. Ct. 2695 (2014).          “The PCRA

timeliness requirement, however, is mandatory and jurisdictional in nature.”

Id. (citation omitted).

       All PCRA petitions must be filed within one year of the date the

judgment of sentence becomes final, unless the petition alleges, and the

petitioner proves, that one of the three enumerated exceptions to the time

for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1).3 Furthermore, a

PCRA petition alleging any of the exceptions under Section 9545(b)(1) must

be filed within 60 days of when the PCRA claim could have first been

brought. 42 Pa.C.S. § 9545(b)(2).

       Allen’s judgment of sentence, imposed on March 20, 2009, became

final on Monday, April 20, 2009, after the expiration of the 30-day period for
____________________________________________


2
  The trial court did not direct Allen to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
3
  The PCRA exceptions that allow review of an untimely PCRA petition deal
with (1) governmental interference; (2) unknown facts that could not have
been ascertained with the exercise of due diligence; and (3) a newly-
recognized constitutional right that applies retroactively. See 42 Pa.C.S. §
9545(b)(1)(i)–(iii).



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filing a direct appeal with this Court.      See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903(a). Given the PCRA one-year time limitation, Allen had until

April 20, 2010, to file a timely PCRA petition.     It follows that the present

petition, filed on November 11, 2011, is patently untimely. Therefore, the

PCRA court has no jurisdiction to review the petition unless Allen pleaded

and proved a statutory exception to the time bar.

      Here, Allen’s amended PCRA petition includes allegations that trial

counsel abandoned him by failing to file a motion to withdraw guilty plea and

direct appeal as requested.        These allegations implicate the PCRA’s

“unknown facts” exception, which applies where “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.” 42 Pa.C.S. § 9545(b)(1)(ii).

      Allen, however, does not disclose when or how he presumably

discovered trial counsel’s putative omission, but avers he “did attempt to file

an appeal by sending a purported appeal to Judge Lerner on or about

January 24, 2011.” Allen’s Amended PCRA Petition, 9/12/2012, at 2, ¶6. As

such, Allen was aware of counsel’s omission by January of 2011.      However,

he did not file his pro se petition until November 14, 2011, almost ten

months later.     Consequently, Allen’s PCRA petition fails to satisfy the

threshold requirement of Section 9545(b)(2), supra, that the petition

invoking an exception be filed within 60 days of the date when the claim

could have been presented. See Commonwealth v. Cintora, 69 A.3d 759,


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762 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (petitioner

must plead and prove facts that demonstrate claim was raised within sixty

days of date it first could have been presented). Therefore, the petition is

untimely.

        In any event, even if Allen had complied with Section 9545(b)(2),

Allen’s petition does not satisfy Section 9545(b)(1)(ii). This exception has

two components, which must be alleged and proved: 1) the facts upon which

the claim was predicated were unknown and 2) could not have been

ascertained by the exercise of due diligence. Commonwealth v. Bennett,

930 A.2d 1264, 1271–1272 (Pa. 2007).                   With regard to the latter

requirement, this Court has held “[d]ue diligence demands that the

petitioner     take   reasonable      steps    to   protect   his   own   interests.”

Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). Here,

Allen has not averred any facts to explain why he could not ascertain that

counsel had failed to file an appeal until January 2011, some 22 months

after sentence was imposed, and nine months after the expiration of the

time for filing a timely PCRA petition.          To the extent that Allen relies on

Bennett, supra,4 his reliance is misplaced.

        In Bennett, the petitioner filed an untimely second PCRA petition,

contending PCRA counsel abandoned him in his appeal from the denial of

____________________________________________


4
    See Allen’s Brief at 8.



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PCRA relief in his first, timely PCRA petition. The petitioner alleged that he

had attempted to find out the status of his appeal from the PCRA and

Superior Courts. Id., 930 A.2d at 1272. The Bennett petitioner averred he

did not know of counsel’s failure to file an appellate brief until October 4,

2000, when the Superior Court notified him of the dismissal of his appeal.

Id. The Pennsylvania Supreme Court held that the petitioner’s allegations

satisfied the requirements of Section 9545(b)(1)(ii). Id. Here, in contrast,

Allen failed to allege any steps he took to ascertain the status of his appeal.

See Carr, supra (stating trial counsel’s failure to file a direct appeal was

discoverable during one-year window to file a timely PCRA petition).

Accordingly, Allen’s petition fails to establish the applicability of the unknown

facts exception, 42 Pa.C.S. § 9545(b)(1)(ii).

      In sum, we conclude that the petition is untimely, and petitioner has

failed to satisfy any exception to the PCRA time bar. Therefore, the PCRA

properly concluded that it lacked jurisdiction to entertain the petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2014



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