J-S77038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ERIC MANSFIELD                             :
                                               :   No. 594 MDA 2017
                       Appellant

                 Appeal from the PCRA Order January 17, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001534-2006,
                            CP-38-CR-0002232-2006


BEFORE:       BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED DECEMBER 01, 2017

        Appellant Eric Mansfield appeals from the Order entered in the Court of

Common Pleas of Lebanon County on January 17, 2017, dismissing as

untimely his first petition filed pursuant to the Post Conviction Relief Act

(PCRA).1 Because this petition is untimely without an applicable exception,

we affirm.

        The PCRA court aptly set forth the facts and procedural history herein

as follows:

              On May 9, 2007, [Appellant] pleaded guilty to rape and
        other sexual offenses related to the sexual assault of a minor at
        Action Number CP-38-CR-1534-2006. Following the conclusion of
____________________________________________



1   42 Pa.C.S.A. §§ 9541-9546.



____________________________________
* Former Justice specially assigned to the Superior Court.
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     a jury trial on June 8, 2007, [Appellant] was found guilty of the
     sexual assault of his prison cellmate at Action Number CP-38-CR-
     2232-2006. On November 14, 2007, this [c]ourt sentenced
     [Appellant] at both action numbers to an aggregate term of 18-
     42 years in a state correctional facility.
             [Appellant], through counsel, filed a timely Motion to Modify
     Sentence on November 26, 2007. On December 3, 2007, the
     [c]ourt denied [Appellant’s] Motion to Modify Sentence, noting
     that the sentences imposed were within the standard range of the
     Sentencing Guidelines and any sentence less than what was
     imposed would have failed to meet the objective standards of any
     valid sentence. No appeal was taken from the [c]ourt's denial of
     the Motion to Modify. Therefore, [Appellant’s] judgment of
     sentence became final on January 2, 2008, the expiration of time
     for seeking appellate review. 42 Pa.C.S. § 9545(b)(1).
             On July 18, 2016 [Appellant] filed a pro se Petition for Post-
     Conviction Collateral Relief alleging the illegality of his sentence.
     On July 21, 2016, this [c]ourt issued an Order appointing the
     Lebanon County Public Defender's Office to represent [Appellant]
     on his PCRA Petition. On September 16, 2016, [Appellant] filed a
     counseled Amended Petition withdrawing the claims of the pro se
     Petition. [Appellant’s] Amended Petition sought relief based upon
     the ineffective assistance of Trial/Plea counsel on three grounds:
     1) Plea Counsel had failed to file a Motion for Modification of
     Sentence despite instruction to do so; 2) Trial/Plea Counsel failed
     to file a timely direct appeal to the Superior Court; and 3)
     Trial/Plea counsel failed to advise [Appellant] as to how to file a
     PCRA Petition. The Commonwealth filed a Response to the
     Amended Petition on October 17, 2016.
             On October 31, 2016, this [c]ourt issued an Order indicating
     an intention to dismiss [Appellant’s] Petition without a hearing
     under the guidelines of Pa.R.Crim.P. 907(1). Our Order noted that
     both [Appellant’s] pro se and counseled Petitions were facially
     untimely and included no attempt by [Appellant] to plead a
     statutory exception to the timeliness requirements of the PCRA.
     Therefore, we found that we were without jurisdiction to consider
     [Appellant’s] Petition. Our Order afforded [Appellant] twenty (20)
     days to file a response to the proposed dismissal pleading the
     factual and legal bases upon which he believed he was entitled to
     relief.
             On November 18, 2016, [Appellant] filed a counseled
     Response to our proposed 907(1) dismissal. [Appellant’s]
     Response reiterated the claims of his September 16, 2016 Petition
     and asserted one additional claim for relief: a claim that his guilty

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      plea at Action Number CP-38-CR-1534-2006 was not knowingly,
      intelligently, or voluntarily made.

Trial Court Opinion, filed 1/18/17, at 1-3.

       The trial court did not order, and Appellant did not file, a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925. In

its Order entered on February 27, 2017, the trial court rested upon the

reasoning it had set forth in its Opinions and Orders of October 31, 2016, and

January 17, 2017, for purposes of the requirements of Rule 1925(a).

       Appellant presents the following question for our review:

      1.        Did the [l]ower [c]ourt err by dismissing Appellant’s Post
      Conviction Relief Act Petition as untimely without holding an
      evidentiary hearing when [Appellant] asserted that he instructed
      [t]rial [c]ounsel to file a direct appeal to the Superior Court, [t]rial
      [c]ounsel failed to file a timely direct appeal to the Superior Court,
      and [Appellant] asserts that his failure to file a timely PCRA
      Petition was due to [t]rial [c]ounsel’s failure to inform [Appellant]
      of his Post-Conviction Relief Act rights?

Brief for Appellant at 4.


      Our review of an order denying PCRA relief is well-established:

            This Court reviews a PCRA court's decision in the light most
      favorable to the prevailing party. Commonwealth v. Hanible,
      612 Pa. 183, 30 A.3d 426, 438 (2011). Our review is limited to a
      determination of whether the record supports the PCRA court's
      factual findings and whether its legal conclusions are free from
      error. Id. “A PCRA court's credibility findings are to be accorded
      great deference, and where supported by the record, such
      determinations     are   binding    on    a    reviewing    court.”
      Commonwealth v. Treiber, ___ Pa. ____, 121 A.3d 435, 444
      (2015) (citing Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d
      297, 301 (2011)). We review the PCRA court's legal conclusions
      de novo. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595,
      603 (2013).


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      Commonwealth v. Williams, 636 Pa. 105, ____, 141 A.3d 440, 452

(2016).

      Before we address the merits of Appellant’s issue, we must first

determine whether the instant PCRA petition was timely filed, for it is well-

settled that if a PCRA petition is untimely, a trial court has no jurisdiction to

entertain the petition. Commonwealth v. Hutchins, 760 A.2d 50, 53

(Pa.Super. 2000).

      A PCRA 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 the time for seeking 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 petition

must allege and the petitioner must prove:

      (i) the failure to raise a claim previously was the result of
      interference by government officials with the presentation of the
      claim in violation of the Constitution or the law of this
      Commonwealth or the Constitution or law 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 Pennsylvania after the time period

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      provided in this section and has been held by that court to apply
      retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The petitioner bears the burden to allege and prove one of the

enumerated exceptions to the one-year time-bar.            See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super.

2008) (finding that to invoke a statutory exception to the PCRA time-bar,

petitioner must properly plead and prove all required elements of the

exception). Moreover, “the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60   days of the     date   the   claim first could have      been presented.”

Commonwealth v. Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations

omitted) See also 42 Pa.C.S.A. § 9545(b)(2).

       Herein, the trial court denied Appellant’s motion to modify sentence on

December 3, 2007; therefore, his judgment of sentence became final on

January 2, 2008. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence final

at conclusion of direct review or at expiration of time for seeking that review);

thus, Appellant had until January 2, 2009, to file a timely PCRA petition;

however, Appellant did not file the instant petition until over seven years later,

on July 18, 2016; therefore, it is patently untimely under the PCRA. See 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Gamboa–Taylor, 562 Pa. 70,

753 A.2d 780 (2000).




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      In his PCRA petition, Appellant asserts only a generic claim of ineffective

assistance of counsel and neither alleges nor proves any of the three

cognizable exceptions to the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1).

Specifically, Appellant maintains that the PCRA court should have granted him

an evidentiary hearing to explore his averment that he had informed trial

counsel to file a direct appeal. He further asserts his claims of ineffective

assistance of counsel were unknown to him in 2008 because trial counsel failed

to inform him of his PCRA rights. Brief of Appellant at 10.

      It is well-established that allegations of ineffective assistance of counsel

will not overcome the jurisdictional timeliness requirements of the PCRA. See

Commonwealth v. Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127 (2005)

(citing   Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 915-16

(2000) (holding a petitioner's claim in a second PCRA petition, that all prior

counsel rendered ineffective assistance, did not invoke timeliness exception,

as “government officials” did not include defense counsel); see also

Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 80, 753 A.2d 780, 785-86

(2000) (finding the “fact” that current counsel discovered prior PCRA counsel

failed to develop issue of trial counsel's ineffectiveness was not after-

discovered evidence exception to time-bar); Commonwealth v. Lark, 560

Pa. 487, 496, 746 A.2d 585, 589 (2000) (holding that allegation of

ineffectiveness is not sufficient justification to overcome otherwise untimely

PCRA claims)).


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       To the extent Appellant attempts to assert the applicability of the newly

discovered   facts   exception   to   the    PCRA   time-bar,   42   Pa.C.S.A.   §

9545(b)(1)(ii), i.e., that trial counsel’s ineffectiveness prevented him from

filing a timely PCRA petition, Appellant has failed to establish the applicability

of that exception where he has not shown that he acted with due diligence.

We observe that:

            [w]ith respect to subsection 9545(b)(ii), we have previously
      described this exception, which permits an untimely claim where
      the facts upon which the claim is predicated were unknown to the
      [appellant] and could not have been ascertained by the exercise
      of due diligence, as an exception for after-discovered evidence.
      Thus, a claim that counsel was ineffective will not save an
      untimely PCRA petition. Finally, the exceptions to the PCRA's one-
      year time limit require the petitioner to file his PCRA petition within
      sixty days of the date the claim could have first been brought.
      Thus, the petitioner must plead and prove specific facts that
      demonstrate his claim was raised within the sixty-day time frame
      of subsection 9545(b)(1)(ii).

                                       ***

            Appellant asserts that his petition meets an exception to the
      timeliness requirements under subsection 9545(b)(1)(ii), because
      he only recently discovered that his trial counsel had not filed his
      direct appeal. Trial counsel's failure to file a direct appeal was
      discoverable during Appellant's one-year window to file a timely
      PCRA petition. In fact, the expiration of Appellant's time to file a
      direct appeal initiated the PCRA's one-year clock. Thus, Appellant
      had a full year to learn if a direct appeal had been filed on his
      behalf. A phone call to his attorney or the clerk of courts would
      have readily revealed that no appeal had been filed. Due diligence
      requires that Appellant take such steps to protect his own
      interests. The mere fact that Appellant alleges his trial counsel
      was ineffective for not filing his appeal does not save his petition
      from the PCRA's timeliness requirements. Accordingly, the PCRA
      court lacked jurisdiction to entertain Appellant's petition for relief.




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Commonwealth v. Carr, 768 A.2d 1164, 1167-68 (Pa.Super. 2001)

(citations, quotation marks, and footnote omitted).

      In light of the foregoing, Appellant’s claim fails, and the PCRA court

properly dismissed his PCRA petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




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