J-S81020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 WILLIAM SCOTT BEATTY, JR.                :
                                          :
                    Appellant             :   No. 1585 MDA 2018

           Appeal from the PCRA Order Entered August 31, 2018
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0000842-2010


BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                FILED MAY 09, 2019

      Appellant, William Scott Beatty, Jr., appeals from the Order entered

August 31, 2018, dismissing as untimely his third Petition for collateral relief

filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

      On May 18, 2011, following an open plea of nolo contendere to eighty-

seven charges, including numerous counts of robbery, burglary, corrupt

organizations, and related offenses, the plea court sentenced Appellant to an

aggregate 497 to 994 months of incarceration. Appellant did not appeal from

the Judgment of Sentence. PCRA Ct. Op., 8/31/18, at 1-2.

      Appellant timely filed a first Petition for collateral relief, asserting

ineffective assistance of plea counsel. The PCRA court ultimately denied this

Petition in June 2015. Id. at 2. Appellant appealed, and this Court affirmed.



____________________________________
* Former Justice specially assigned to the Superior Court.
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Commonwealth v. Beatty, 1256 MDA 2016, unpublished memorandum at

4 (Pa. Super. filed Feb. 5, 2016).

       In March 2016, Appellant filed a second Petition for collateral relief.

PCRA Ct. Op. at 3.          The PCRA court granted relief in part, reinstating

Appellant’s right to petition the Pennsylvania Supreme Court for allowance of

appeal from the denial of his first Petition. PCRA Ct. Order, 7/21/17. The

court denied relief in all other respects. Id. Appellant appealed, and this

Court affirmed. Commonwealth v. Beatty, 1298 MDA 2017, unpublished

memorandum at 4 (Pa. Super. filed Feb. 23, 2018).1

       In March 2018, Appellant pro se filed a third Petition for collateral relief.

In his Petition, Appellant asserted (1) several claims of ineffective assistance

of plea counsel; (2) an “umbrella conspiracy” between plea counsel, the

prosecuting attorney, and the court; and (3) prosecutorial misconduct.

Petition, 3/23/18, at 2-5 (unpaginated). In support of these claims, Appellant

averred that he had newly discovered evidence that the Commonwealth had

withdrawn “numerous counts from [his] co-defendants[’] indictments.” Id. at

2 (unpaginated). Appellant attached to his Petition a Sentencing Order issued

in the case of one of his co-defendants, Vincent John Lighty, which indicates

that Lighty entered into a negotiated plea agreement resulting in an aggregate

____________________________________________


1 The PCRA court granted Appellant a stay on his Petition for Allowance of
Appeal (PAA) while this Court resolved his prior appeal. In its most recent
opinion, the PCRA court suggests the Supreme Court denied the PAA. PCRA
Ct. Op. at 3. The record does not support this. See Lebanon Cty. Criminal
Docket No. CP-38-CR-0000842-2010.

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sentence of eleven months to two years less one day. Id., Exh. 1 (Lighty

Sentencing Order, 5/9/12). Appellant did not aver when he discovered this

evidence. See generally Petition.

      The PCRA court appointed counsel and thereafter issued notice of its

intent to dismiss Appellant’s Petition as untimely.      Order, 4/3/18, at 2

(unpaginated); Order, 5/4/18. Appellant responded to the court’s notice of

dismissal, averring that he was unaware, “until recently,” of his new evidence.

Response, 5/16/18, at 2 (unpaginated). Moreover, according to Appellant, he

could not have discovered this evidence previously despite his due diligence.

Id. at 2-3 (unpaginated).

      The PCRA court dismissed Appellant’s Petition and issued an Opinion in

support of its decision. Appellant timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) Statement; the court issued no further opinion.

      Appellant raises the following issue on appeal:

      1. Whether the [PCRA] [c]ourt erred in denying Appellant’s PCRA
         Petition as untimely[.]

Appellant’s Br. at 4.

      We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.    Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)).




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       We address the timeliness of Appellant’s Petition, as it implicates our

jurisdiction and may not be altered or disregarded in order to address the

merits of his claims. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007).     Under the PCRA, any petition for relief, including second and

subsequent petitions, must be filed within one year of the date on which the

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

are three statutory exceptions. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). In addition,

Section 9545(b)(2) requires that any PCRA petition invoking one of the

statutory exceptions to the time requirements of the PCRA “shall be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S

§ 9545(b)(2); see Commonwealth v. Williamson, 21 A.3d 236, 241 (Pa.

Super. 2011).2

       Appellant concedes that he filed his Petition past the one-year period

required by the PCRA but asserts that he is entitled to rely on the newly

discovered facts exception under Section 9545(b)(1)(ii).      Appellant’s Br. at

10-11.3
____________________________________________


2 Effective December 24, 2018, Section 9545(b)(2) now provides that, for
claims arising on December 24, 2017, or after, “[a]ny petition invoking an
exception . . . shall be filed within one year of the date the claim could have
been presented.” Appellant’s claim arose in July 2014, see infra, and thus
the amended statute does not apply.

3 Appellant’s Petition is patently untimely. His Judgment of Sentence became
final on June 17, 2011, when the thirty-day period for filing a direct appeal
expired. See 42 Pa.C.S. § 9545(b)(3) (providing that a judgment of sentence
becomes final at the conclusion of direct review or the expiration of the time
for seeking review). Appellant filed his filed Petition on March 23, 2018, nearly
six years late.

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      This exception affords the PCRA court jurisdiction 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).   “Due diligence demands the petitioner to take reasonable

steps to protect [his] own interests.” Commonwealth v. Shiloh, 170 A.3d

553, 558 (Pa. Super. 2017) (citation omitted). It requires “neither perfect

vigilance nor punctilious care” but does require “reasonable efforts by a

petitioner, based on the particular circumstances, to uncover facts that may

support a claim for collateral relief.” Commonwealth v. Smith, 194 A.3d

126, 134 (Pa. Super. 2018) (citation omitted); Shiloh, supra at 558.

      On its face, the record reveals that Appellant did not diligently seek

details of co-defendant Lighty’s plea agreement. At an evidentiary hearing

conducted in July 2014 in response to his first PCRA Petition, testimony

established that Appellant had learned that Lighty agreed to testify against

Appellant and that Lighty was cooperating with the Commonwealth in

exchange for the dismissal of certain charges against him. Indeed, these facts

formed the basis of Appellant’s claim that plea counsel was ineffective. See

N.T., 7/29/14, at 26-27 (Appellant’s testimony, asserting that he was unable

to make an informed decision regarding whether to go to trial or enter a plea

because he was not informed by counsel that “certain counts were being

dropped” against his co-defendants in exchange for their cooperation); 86

(Appellant’s   cross-examination   of    plea   counsel,   challenging   counsel’s




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assertion that he was not aware of the full details of co-defendants’ agreement

with the Commonwealth).

      Because Appellant was aware of Lighty’s cooperation with the

Commonwealth in July 2014, reasonable efforts by Appellant or his PCRA

counsel would have revealed the Lighty Sentencing Order, which issued in May

2012, more than two years prior to Appellant’s first PCRA evidentiary hearing.

Thus, Appellant cannot establish in this PCRA Petition the newly discovered

facts exception under 42 Pa.C.S. § 9545(b)(1)(ii). Compare Smith, supra

at 134 (concluding that petitioner’s lack of due diligence was apparent on the

face of the record, where petitioner knew of potential witness years before

securing an affidavit from him); with Shiloh, supra at 559-60 (remanding

for an evidentiary hearing to ascertain petitioner’s diligence, where it was

unclear if petitioner had reason to investigate whether a cooperating witness

for the Commonwealth had lied about receiving a plea agreement).

      In addition, Appellant suggests that he “recently” learned the details of

co-defendant Lighty’s negotiated plea agreement.       Id. at 11.    However,

Appellant has not explained with specificity how and when he learned these

details. See generally Petition; Response; Appellant’s Br. Thus, Appellant

failed to invoke properly the jurisdiction of the PCRA court. See 42 Pa.C.S §

9545(b)(2); Williamson, supra at 242-43 (concluding that the PCRA court

was without jurisdiction to consider merits of petitioner’s untimely claims,

where petitioner delayed acting upon new facts for nearly a year, well beyond

the sixty-day grace period).

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     For these reasons, we discern no error in the PCRA court’s dismissal of

Appellant’s Petition as untimely. Jarosz, supra at 350.

     Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/09/2019




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