J-S55040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FRANCIS O'NEILL

                            Appellant                No. 560 EDA 2014


                  Appeal from the PCRA Order January 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0708641-1979


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

MEMORANDUM BY OTT, J.:                          FILED FEBRUARY 20, 2015

       Francis O’Neill appeals from the order entered in the Philadelphia

County Court of Common Pleas, dated January 15, 2014, dismissing his

serial petition filed under the Post-Conviction Relief Act (“PCRA”)1 as

untimely.      O’Neill seeks relief from the judgment of sentence of an

aggregate 30 to 60 years’ imprisonment imposed on January 21, 1981,

following his jury conviction of third-degree murder, three counts of

aggravated assault, criminal conspiracy, and possession of an instrument of

crime.2 Because we agree the petition is untimely, we affirm.


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1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 2502(c), 2702, 903, and 907, respectively.
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       O’Neill’s convictions arose out of a shooting on June 17, 1979, when

O’Neill and his co-defendant, Robert Forbes, who are white, shot at four

African-American teenage boys in Southwest Philadelphia.                This Court

affirmed the judgment of sentence on April 2, 1982,3 and the Supreme Court

denied allocatur on February 23, 1983. O’Neill did not file a petition for writ

of certiorari in the United States Supreme Court.           Since that time, O’Neill

has inundated the court with numerous PCRA petitions, raising an

assortment of requests and claims.4            None of these petitions has provided

O’Neill any relief.

       O’Neill filed the current pro se PCRA petition on December 5, 2012.

After determining that the petition was untimely, the PCRA court notified

O’Neill of its intent to dismiss the petition without a hearing on October 28,

2013. See Pa.R.Crim.P. 907. O’Neill filed a response to the Rule 907 notice

on November 13, 2013.           On January 15, 2014, the PCRA court dismissed

O’Neill’s petition, finding the following: “Upon review, [O’Neill]’s claim of an
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3
    Commonwealth v. O’Neill, 445 A.2d 198 (Pa. Super. 1982).
4
  The PCRA court recited the extensive procedural history in its opinion and
we need not restate it here.     See PCRA Court Opinion, 3/7/2014, at
unnumbered 1-3.

      It merits mention that O’Neill filed an appeal, concerning the
underlying matter, with our sister court, the Commonwealth Court of
Pennsylvania, that was denied in 2012. See O’Neill v. Commonwealth
Pa. Dep’t of Corr., 2012 Pa. Commw. Unpub. LEXIS 884 [17 M.D. 2011]
(Pa. Commw. 2012), appeal dismissed, 2013 Pa. LEXIS 1068 [3 EAP 2013]
(Pa., May 29, 2013).



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unlawful sentence fails to adequately invoke an exception to the timeliness

provision.” Order, 1/15/2014, at 1 n.1. This appeal followed.5

       “Crucial to the determination of any PCRA appeal is the timeliness of

the underlying petition. Thus, we must first determine whether the instant

PCRA petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766,

768 (Pa. Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

       The PCRA timeliness requirement … is mandatory and
       jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
       1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
       A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa.
       1, 753 A.2d 201, 203 (2000)). The court cannot ignore a
       petition’s untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013).                   A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S. § 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 review.”          42 Pa.C.S. § 9545(b)(3).   Here,

O’Neill’s petition for allowance of appeal with the Pennsylvania Supreme

Court was denied on February 23, 1983.              Therefore, O’Neill’s sentence
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5
  The PCRA court did not order O’Neill to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). Nevertheless, he filed a
concise statement on May 15, 2014, after the PCRA court had issued an
opinion under Pa.R.A.P. 1925(a) on March 7, 2014.

    We also note that even though the Commonwealth received an extension,
it did not file a response in this matter.



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became final on May 24, 1983, when his time to file a petition for writ of

certiorari with the United States Supreme Court expired. See Sup. Ct. R. 13.

Moreover, pursuant to Section 9545(b)(1), O’Neill had one year from the

date his judgment of sentence became final to file a PCRA petition.        See

Taylor, supra. The instant petition was not filed until December 5, 2012,

almost 30 years later, making it patently untimely.6

       An untimely PCRA petition may be considered if one of the following

three exceptions applies:

       (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-iii). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of
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6
  There exists a proviso to the 1995 amendments to the PCRA that provides
a grace period for petitioners whose judgments became final on or before
the January 16, 1996 effective date of the amendments. However, the
proviso applies to first PCRA petitions only, and the petition must be filed by
January 16, 1997. See Commonwealth v. Thomas, 718 A.2d 326 (Pa.
Super. 1998) (en banc). It is evident O’Neill is not entitled to the relief
provided by the proviso.



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when the PCRA claim could have first been brought. 42 Pa.C.S. §

9545(b)(2).

       O’Neill argues his claims may be considered because the requirements

for the “governmental interference” and “unknown facts” exceptions are

satisfied.7   O’Neill’s Brief at unnumbered 4.       Specifically, he contends the

PCRA court erred in dismissing his petition as untimely because his sentence

is illegal and no statutory authorization exists for this particular sentence.

Id. at unnumbered 2. He states that in 2008, he learned his criminal record

showed incorrect convictions for 28 crimes and in December of that year, he

was able to have these false convictions corrected and removed from his

record.    Id. at unnumbered 4.          O’Neill alleges he then began requesting

more legal documents to examine, including his presentence report,

psychiatric evaluation, and criminal docket sheet.8        Id. at unnumbered 5.

With respect to the docket sheet, he states that it indicates he was found

guilty of three counts of simple assault and was sentenced to a term of five

to ten years on each count. Id. O’Neill asserts the jury never convicted him

of three counts of simple assault and therefore, he is serving an illegal

sentence.      Id.     Moreover, he argues, “According to the sentencing
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7
  O’Neill raises fives issue on appeal, which we will address together. See
O’Neill’s Brief at unnumbered 1-2.
8
  He states he received the presentence report and psychiatric evaluation in
October of 2012, and the docket sheet on March 14, 2014.             Id. at
unnumbered 5-6.



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guidelines, [his] prior convictions do not warrant the maximum sentence to

be imposed on every count.” Id. at unnumbered 7. O’Neill also states both

the pre-sentence report and the psychiatric evaluation report recommended

a “short” sentence and “[t]here is nothing in the record that supports the

violations of the sentencing guidelines.”   Id.   Lastly, he avers that the 28

false convictions “may have contributed” to the trial court’s determination in

imposing a maximum sentence. Id. at unnumbered 8.

      With respect to the governmental interference exception, we conclude

O’Neill has not met the burden of proving that such an exception applies to

his case. While O’Neill seems to allege the government interfered with his

ability to obtain the sentencing transcripts, he has not demonstrated that

government officials interfered with his ability to present or assert his

claims. According to his own statements, he did not even attempt to obtain

the documents at issue until 2008, well after his sentencing in 1981.

      With regard to the “unknown facts” exception, we again conclude

O’Neill has not met the burden of proving this exception applies. First, to

the extent that he argues his sentence is illegal because the docket indicates

he was convicted and sentenced for three counts of simple assault, we are

guided by the following:

      “Though not technically waivable, a legality [of sentence] claim
      may nevertheless be lost should it be raised for the first time in
      an untimely PCRA petition for which no time-bar exception
      applies, thus depriving the court of jurisdiction over the claim.”
      Commonwealth v. Slotcavage, 2007 PA Super 378, 939 A.2d
      901, 903 (Pa. Super. 2007) (citing Commonwealth v. Fahy,

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       558 Pa. 313, 737 A.2d 214, 223 (Pa. 1999) (“Although legality
       of sentence is always subject to review within the PCRA, claims
       must still first satisfy the PCRA’s time limits or one of the
       exceptions thereto.”)).

Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014).

       Here, O’Neill has failed to demonstrate that he exercised due diligence

in obtaining his criminal docket, which had been publicly available since his

case was held for court in 1979. See Commonwealth v. Lopez, 51 A.3d

195, 196 (Pa. 2012) (concluding a PCRA petition is time-barred pursuant

Section 9545(b)(1)(ii) where the information at issue was publicly available

for years and discoverable). Therefore, O’Neill could have ascertained this

information earlier if he had exercised due diligence. 9   He did not so, and

therefore, this argument fails.

       Second, to the extent that O’Neill argues that his prior convictions do

not warrant the maximum sentence to be imposed on every count where the

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9
    We note O’Neill had several opportunities to obtain this information,
including during to his appeal to the Commonwealth Court, which concerned
the issue of whether the Department of Corrections had incorrectly recorded
that his sentences be served consecutively.              See O’Neill v.
Commonwealth Pa. Dep’t of Corr., supra.

      Moreover, it is evident from the 1981 quarter session sheets,
contained in the certified record, that O’Neill was charged with both
aggravated assault and simple assault. Simple assault is a lesser included
offense of aggravated assault. See Commonwealth v. Bracey, 831 A.2d
678, 686 (Pa. Super. 2003). In the quarter session sheets, the court
indicated the simple assault counts merged with the aggravated assault
convictions and the court did not impose a sentence with respect to these
counts. As such, his argument is futile.



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presentence report and psychiatric evaluation both recommend shorter

sentences and the 28 false convictions were removed from his record, we

disagree.

      Again, we note O’Neill has failed to demonstrate that he exercised due

diligence in obtaining the presentence report and psychiatric evaluation,

which have been available since his sentencing in 1981. See Lopez, supra.

Moreover, as determined by the PCRA court:

             [O’Neill] attempts to attack the discretionary aspects of
      sentencing.      Attached to his petition is a letter from the
      Pennsylvania State Police stating that his record was corrected
      to accurately reflect his prior convictions. The letter is dated
      November 25, 2008. [O’Neill] did not file the instant petition
      un[til] December 5, 2012, over four years after it could have
      been filed. Therefore, because [O’Neill] failed to raise this claim
      with[in] 60 days of when it first could have been presented, this
      Court could not review the merits of his claim and properly
      dismissed it.

PCRA Court Opinion, 3/4/2014, at unnumbered 4. We are inclined to agree

with the PCRA court that these facts could have been ascertained sooner,

through the exercise of due diligence, and O’Neill failed to do so.

      Accordingly, because O’Neill’s petition is untimely and does not satisfy

any exception to the PCRA timeliness requirement, we are without

jurisdiction to review his claims.     Therefore, the PCRA court did not err in

dismissing his petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2015




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