J-S92008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWARD CARTER, JR.,

                            Appellant                 No. 33 WDA 2016


               Appeal from the PCRA Order November 13, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000077-2012


COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES EDWARD CARTER, JR.,

                            Appellant                 No. 34 WDA 2016


                    Appeal from the Order December 9, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000077-2012


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

MEMORANDUM BY SHOGAN, J.:                         FILED JANUARY 24, 2017




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S92008-16


      Appellant, James Edward Carter, Jr., appeals from the order denying

his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541–9546, without a hearing. We affirm.

      This Court, relying on the explanation of the first PCRA court,

previously summarized the facts and initial procedural history as follows:

            The above-captioned matter arises out of a series of
      controlled drug transactions arranged by the Pennsylvania Office
      of the Attorney General. On August 6, 2010, Agent Ronald A.
      Pate of the Attorney General’s Office provided $1,500.00 to a
      confidential informant for the purpose of purchasing one pound
      of marijuana from Defendant James Edward Carter, Jr.
      (hereinafter, “Defendant”). Later that day, while agents of the
      Attorney General’s Office watched, the informant provided the
      $1,500.00 to Defendant.          At approximately 4:01 p.m.,
      Defendant delivered to the informant a large zip-loc bag
      containing approximately one pound of green vegetable matter.
      The substance inside the bag was sent to the Greensburg Crime
      Lab for testing, and the test results revealed that the substance
      was 429 grams of marijuana.

            On August 16, 2010, the informant was supplied with
      $3,200 for the purpose of purchasing cocaine from Defendant.
      Later that day, while agents watched and positively identified
      Defendant, the informant provided the $3,200 to Defendant. On
      August 30, 2010 at 1:32 p.m., Defendant delivered a baggie
      containing a light-colored powder to the informant by placing it
      in a sock by a stop sign and instructing the informant to pick it
      up. The baggie containing the powder was subsequently sent to
      the DEA Northeast Crime Lab for testing, and the test results
      revealed that the powder weighed 146.9 grams and contained
      cocaine.

            On August 9, 2011, Agent Pate from the Pennsylvania
      Attorney General’s Office and Detective Todd Naylor filed a
      criminal complaint charging Defendant with four counts of
      possession with intent to deliver under 35 P.S. § 780-
      113(a)(30), two counts of possession of a controlled substance
      under 35 P.S. § 780-113(a)(16), and one count of theft by
      deception under 18 Pa.C.S.A. § 3922(a)(1). Defendant was
      arrested shortly thereafter. On January 12, 2012, Defendant

                                    -2-
J-S92008-16


       waived his right to a preliminary hearing. On February 13,
       2012, the Commonwealth filed an Information charging
       Defendant with two counts of possession with intent to deliver,
       two counts of possession, and one count of theft by deception.

             After several continuances of Defendant’s trial, Defendant
       and his attorney, Mr. Louis Emmi, completed the process of
       selecting a jury. On March 5, 2013, before the jury was sworn,
       Defendant and the Commonwealth reached an agreement in
       which Defendant pled guilty to two counts of possession with
       intent to deliver. In exchange, the Commonwealth reduced the
       weight from 146.9 grams of cocaine to 49 grams, waived the
       mandatory minimum sentence, and Defendant was not required
       to report for execution of the sentence for a period of one
       month. Defendant signed an A Information, pleading guilty to
       the amended charges under the agreement and also signed a
       waiver of arraignment. In accordance with the plea agreement,
       Defendant was sentenced on the same date to a term of
       imprisonment of not less than two and one-half years nor more
       than five years. The Sentence Order stated that, pursuant to
       Defendant’s plea agreement, execution of the sentence was
       deferred to April 4, 2013 at 9:00 a.m., when Defendant was to
       report to the Beaver County Jail to begin serving his sentence.
       On April 4, 2013, Defendant failed to appear at the Beaver
       County Jail as required. As a result, a bench warrant for
       Defendant’s arrest was issued on April 5, 2013. Defendant was
       subsequently arrested and incarcerated on August 4, 2013.[1]

____________________________________________


1
    The trial court entered the following order on August 15, 2013:

              AND NOW, this 15th day of August, 2013, having been
       advised that the defendant failed to appear at the date and time
       as set forth in the sentencing order of March 5, 2013, directing
       him to report on April 4, 2013, and having been advised that he
       was apprehended and placed in the Beaver County Jail on
       August 4, 2013, it is hereby order[ed] and directed that the
       effective date of this sentence be amended to August 4, 2013.

             All other aspects of the sentence order of March 5, 2013,
       are to remain unchanged.

(Footnote Continued Next Page)


                                           -3-
J-S92008-16


             On November 8, 2013, Defendant filed a pro se Motion for
      Post Conviction Collateral Relief in which he claims that his
      sentence was improperly calculated, that the “evidence is more
      than questionable[,]” that his counsel was ineffective, and that
      the “evidence [was] not at trial when [Defendant was] coerced
      into a plea bargain “‘deal.’” Pro se PCRA Pet., at 4. As this was
      Defendant’s first PCRA petition in this matter, the [c]ourt
      appointed the Beaver County Public Defender to represent
      Defendant in these proceedings. On March 14, 2014, Defendant,
      through counsel, filed an Amended Petition for Post Conviction
      Relief. In the Amended Petition, Defendant incorporates his pro
      se PCRA petition by reference, and he averred that his March 5,
      2013 guilty plea was not knowing, intelligent, and voluntary
      because he was coerced by his counsel into accepting a plea
      agreement he did not entirely understand or want. As relief,
      Defendant requests a new trial, an evidentiary hearing, or
      modification of his sentence.         On April 22, 2014, the
      Commonwealth filed an Answer to Defendant’s Post Conviction
      Relief Petition in which the Commonwealth asserts that
      Defendant’s plea colloquy demonstrates that he understood the
      plea agreement and was not coerced into accepting it. The
      Answer also contains a New Matter in which the Commonwealth
      claims that Defendant failed to comply with the mandates of 42
      Pa.C.S.A. § 9545(d) and, therefore, is not entitled to a hearing
      or any relief.

             Despite the Commonwealth’s claim in its New Matter, the
      [c]ourt held a hearing in this matter on June 9, 2014. During
      the hearing, Defendant was the only witness that was available
      to testify. After Defendant testified, the [c]ourt issued an Order
      continuing the PCRA hearing to September 3, 2014. The parties
      were directed to ensure that Defendant’s prior counsel, Louis
      Emmi, Esquire, and the Assistant District Attorney that
      represented the Commonwealth during Defendant’s guilty plea,
      Ronald DiGiorno, appear at the hearing. On September 3, 2014,
      the [c]ourt resumed Defendant’s PCRA hearing, and heard
      testimony from Attorney Emmi, who testified that Defendant
      admitted his guilt to him and that he entered a knowing,
      intelligent, and voluntary plea in order to avoid a greater
      sentence.
                       _______________________
(Footnote Continued)

Order, 8/15/13.



                                            -4-
J-S92008-16


             The [c]ourt entered an Order denying Defendant’s PCRA
      petitions on September 4, 2014.       On September 5, 2014,
      Defendant attempted to file pro se a Post-Sentence Motion to
      reverse his conviction.1 A Notice of Appeal was then filed on
      October 2, 2014. On October 6, 2014, Defendant was directed
      to file a 1925(b) Concise Statement of Matters Complained of on
      Appeal. Defendant moved for an extension of time in which to
      file his Concise Statement, and this was granted by the [c]ourt
      on October 27, 2014. On November 7, 2014, Defendant filed his
      Concise Statement.
            1
               The Motion was disregarded by the [c]ourt as an
            attempt to have hybrid representation when
            Defendant was already represented by counsel.
            Commonwealth v. Ali, 608 Pa. 71, 89, 10 A.3d
            282, 293 (2010) (where “appellant was represented
            by counsel on appeal,” “his pro se Rule 1925(b)
            statement was a legal nullity.”); Commonwealth v.
            Ellis, 534 Pa. 176, 626 A.2d 1137, 1139, 1141
            (1993) (“There is no constitutional right to hybrid
            representation either at trial or on appeal. . . . A
            defendant may not confuse and overburden the court
            by his own pro se filings of briefs at the same time
            his counsel is filing briefs on his behalf.”).

Commonwealth v. Carter, 122 A.3d 456, 1651 WDA 2014 (Pa. Super. filed

May 22, 2015) (unpublished memorandum) (quoting PCRA Court Opinion,

11/19/14, at 1–4).

      On appeal, we affirmed the dismissal of the first PCRA petition.

Carter, 1651 WDA 2014. The present PCRA court described the subsequent

procedural history as follows:

             On September 21, 2015, Defendant filed his second PCRA
      Petition [pro se], which is the basis for the instant proceedings.
      On October 1, 2015, the [c]ourt entered an Order and Notice of
      Intention to Dismiss Without Hearing in which the [c]ourt denied
      Defendant’s request for appointment of counsel on this second
      PCRA Petition, notified the Defendant of the [c]ourt’s intent to
      dismiss this second PCRA Petition without a hearing, and

                                    -5-
J-S92008-16


       explained its reasons. Those reasons were that the issues raised
       were previously litigated and/or waived and that Defendant’s
       Petition was untimely and thus the [c]ourt did not have
       jurisdiction. On October 23, 2015, Defendant filed a Show of
       Cause, further arguing his position.

              The [c]ourt then entered an Order on November 13, 2015
       dismissing Defendant’s PCRA Petition without a hearing for the
       reasons previously stated. On December 14, 2015, Defendant
       filed a Notice of Appeal.[2] This Notice, however, did not refer to
       the [c]ourt’s Order of November 13, 2015, nor did it contain the
       required filing fee, nor did it contain a Petition to Proceed in
       Forma Pauperis. The Clerk then mailed a letter to Defendant
       dated December 14, 2015, which informed him of these
       deficiencies in his filing.     Then, on December 30, 2015,
       Defendant filed an Application for Leave to Appeal in Forma
       Pauperis along with a second Notice of Appeal.

              On January 12, 2016, the [c]ourt entered an Order
       directing Defendant to file a Concise Statement of Matters
       Complained of on Appeal. Defendant filed his Concise Statement
       on February 2, 2016.

PCRA Court Opinion, 2/12/16, at 2–3 (footnote omitted). On February 19,

2016, this Court, sua sponte, consolidated the appeals at 33 and 34 WDA

2016, noting that the appeal at 34 WDA 2016 “appear[ed] to be Appellant’s
____________________________________________


2
    Appellant’s appeal was timely filed, and he is represented by private
counsel. The record reveals that Appellant placed his notice into the prison
mail on December 11, 2015. Pursuant to the “prisoner mailbox rule,” the
notice of appeal is considered filed on the date it is delivered to prison
authorities for mailing. See Commonwealth v. Wilson, 911 A.2d 942, 944
(Pa. Super. 2006) (recognizing that under the “prisoner mailbox rule,” a
document is deemed filed when placed in the hands of prison authorities for
mailing). Moreover, even utilizing the date the notice was received by the
clerk of courts, December 14, 2015, the appeal was timely. The thirtieth
day of the appeal period fell on December 13, 2015, which was a Sunday.
See 1 Pa.C.S. § 1908 (whenever the last day of any time period referred to
in a statute falls on a Saturday, Sunday, or holiday, we omit that day from
the computation.).



                                           -6-
J-S92008-16


attempt at correcting or amending his notice of appeal filed at appeal

number 33 WDA 2016 . . . .” Order Per Curiam, 2/19/16.3 The PCRA court

complied with Pa.R.A.P. 1925(a).

       Appellant raises the following issues in this appeal:

        I.    Did the PCRA Court err in determining that the issue of the
              validity of the plea was previously litigated or waived[?]

       II.    Did the PCRA Court err in determining that the PCRA
              Petition was untimely[?]

Appellant’s Brief at 5 (footnote omitted).

       When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

____________________________________________


3
  The “second” notice of appeal was an attempt to correct the deficiencies of
Appellant’s timely notice of appeal received by the clerk of courts on
December 14, 2015.         A second notice of appeal was unnecessary,
Appellant’s correction of the deficiencies notwithstanding. Commonwealth
v. Williams, 106 A.3d 583 (Pa. 2014) (A timely notice of appeal triggers the
jurisdiction of the appellate court, notwithstanding whether the notice of
appeal is otherwise defective.). As the High Court stated in Williams:

       The precise nature of the alleged defect in the . . . notice of
       appeal is of no consequence. As Rule 902 of the Rules of
       Appellate Procedure states, “failure of an appellant to take any
       step other than the timely filing of a notice of an appeal does not
       affect the validity of the appeal.”

Id. at 590. Thus, we quash the appeal docketed at 34 WDA 2016.



                                           -7-
J-S92008-16


the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).

      Initially, we must address whether this appeal is properly before us.

The PCRA court dismissed Appellant’s petition as untimely.                  “As the

timeliness of a PCRA petition is a question of law, our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Callahan,

101 A.3d 118, 121 (Pa. Super. 2014) (citation omitted).              Moreover, the

timeliness of a PCRA petition is a jurisdictional threshold that may not be

disregarded in order to reach the merits of the claims raised in a PCRA

petition that is untimely.    Commonwealth v. Cintora, 69 A.3d 759, 762

(Pa. Super. 2013).     “Whether [a petitioner] has carried his burden is a

threshold   inquiry   prior   to   considering   the   merits   of    any    claim.”

Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

      In order to be considered timely, a first, or any subsequent PCRA

petition, must be filed within one year of the date the petitioner’s judgment

of sentence becomes final.         42 Pa.C.S. § 9545(b)(1).      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, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3).

      Our review of the record reflects that Appellant pled guilty and was

sentenced on March 5, 2013. The sentencing order provided that “[p]er the


                                       -8-
J-S92008-16


plea agreement, execution of sentence is deferred to April 4, 2013 . . . .”

Order, 3/5/13. Appellant failed to report on April 4, 2013, as ordered, and

on April 5, 2013, a Bench Warrant issued for Appellant’s arrest. Appellant

was apprehended and incarcerated on August 4, 2013, and the court issued

the August 15, 2013 order described supra n.2, wherein it directed that the

effective date of Appellant’s sentence be amended to August 4, 2013.

        Appellant asserts that he is entitled to utilize August 15, 2013, as the

date to determine when his judgment of sentence became final. Just as we

would not use April 4, 2013, as the pivotal date, we cannot use August 4,

2013, let alone August 15, 2013.4                    The common pleas court imposed

Appellant’s judgment of sentence on March 5, 2013.                            That Appellant

negotiated     until    April    4,     2013,   to    begin   serving   his     sentence   of

incarceration, or that due to his flight, Appellant’s apprehension on August 4,

2013,     further      delayed        Appellant’s     execution   of    his    sentence    of

imprisonment, does not alter the fact that the trial court imposed

Appellant’s sentence on March 5, 2013.                  Thus, this is the date we must

utilize to determine the timeliness of the instant PCRA petition.

        Appellant did not file a direct appeal; therefore, his judgment of

sentence became final thirty days after March 5, 2013, on Thursday, April 4,

____________________________________________


4
   It goes without saying that utilizing August 4, 2013, as the date of
imposition of sentence would permit Appellant to benefit from his
abscondence from the jurisdiction.



                                                -9-
J-S92008-16


2014.5 Pa.R.A.P. 903. Thus, Appellant had until Friday, April 4, 2014, to file

a timely PCRA petition. 42 Pa.C.S. § 9545(b)(3). The instant petition, filed

September 21, 2015, is facially untimely.

       Our review of the record, the briefs, and the relevant law compels our

conclusion that the PCRA court has properly, thoroughly, and succinctly

evaluated the issues, beginning with the untimeliness of the appeal and the

inapplicability of any exception to the timeliness requirement. 6   Therefore,

we rely on the February 12, 2016 opinion of the PCRA court and adopt it as

our own.7

       The appeal at 33 WDA 2016 is affirmed. The appeal at 34 WDA 2016

is quashed.




____________________________________________


5
  We note that the PCRA court made a computational error by one day when
determining the date when Appellant’s judgment of sentence became final
and a timely PCRA petition was due. The PCRA court determined that any
petition was due by Thursday, April 3, 2014, when in actuality, as noted, the
pivotal date was Friday, April 4, 2014. This computational error, however,
has no effect because Appellant never filed his petition until September 21,
2014, more than five months late.
6
   As Appellant asserts that his petition is timely, he does not argue
applicability of any of the limited exceptions set forth in the PCRA. See 42
Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
7
  We direct the parties to attach a copy of the PCRA court opinion in the
event of further proceedings in this matter.



                                          - 10 -
J-S92008-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2017




                          - 11 -
                                                                                            Circulated 01/09/2017 11:37 AM




                  IN THE¢0URT OF COMMQN.PLEAS·OF BEAVER COUNTY
                                           PENNSYLVANIA
                                      'CRIMINAL DIVISION - LAW

    COMMONWEALTH 0.F.PENNSYL VANIA

         vs.
                                                                      NO:      77 OF .2012
JAMES BDWARP CARTER,. JR.,

                          DEFENDANT

TESLA, J.                                                                          ·FEBRUARY        l~ ,2016
                                                                                                   ~-


                                       RULE 19.ZS(a) ·O:PINION
                               FACTS AND PROCEDURAL HISTORY

         This Opinion is issued to .address. Defendant's second Petition in the above-captioned

case under the Post-Conviction Relief Act (hereinafter, ·''PCRA'' or "i\yt';)'. The facts and

procedural   history 'Oftht$   case are.presented in brief because they are described in .greater detail

in the Court's Order and Notice of'Intention to         Dism~s.s Without Hearing and in thee Court's Rule
1 ~25 (a) Opinion from Defendant's first PCRA proceedings.1

         On the eve of trial       aft;er   selecting .a jury; Defendant pled guilty to. two -counts .of"

Possession wifu·Jntertt to, Peli~ei-; Defelldant,signed an am~nded rtrformation;pleading guilty to

the amended .charges· .per the plea· agn~¢ment, :and also sign.e4 waiving his: Arraignment. In

accordance with the· ple~ agreement, Defendant W~s $entepe¢d on the same date to a term of

· imprisonment of not less than two and one..half years nor more than five years. The Sentence

Order stated that, pursuant to Defendant's plea .agreement, execution of the sentence was

deferred to A-p.nl 4, 2013' .at 9:00 a.m., when Defendant was to report to the Beaver County J aH to


I
 A copy of the following Orders are attadie~ to this Opinion under A1>pelidfx "A" and are incorporated 'into this
Opinion as ff niJly set forth herein: ('.)rder Dismtssing· Oefendant'.s PCRA Petitior» Without Hearing, entered'
Nove1nber 13;, 2015;; OrderandNotice·ofln\entiontoDism:i;s.s Without Hearing> -ehteteci October I., 2015;and Rµle.
1925(a)Qpirtkin, eqt~redNovember 191 '20J4,




                                                    APP.B
 begin serving his sentence, On April 4, 2013, Defendant faile4 to appear a:t the Beaver County

 Jail as required. As a result, a bench warr~t for Deferl:dant 1 s arrestwas 1'$$Ued on April $. 2013 ,,

 Defendant was· subs.equently arrested: a.nd.in¢arcerated fourmonths. later on August 4, '2013.

        On Novembe, 8, :Z:013, Defendant filed pro se his fo:st Motion for Post Conviction
 Co:ilateraL Relief. ])efendartf was appointed. counsel, filed an Amended Petition, and the Court

held a hearing oh two separate days on Defendant's Petition. The Court then denied Dere~dant• s

Petition and Defendant appealed that denial. On May 22, 20{ 5, the Superior Court at l 651 WDA

2014 entered an unpublished memorandum decision. A copy is attached under "Exhibit "A" per

210 Pa. Code § 65J 7(A); The Honorable Judge Shogan, writing for the Superior Court, stated:

        We have ;reviewed the hriefs hf the parties, the, relevantlaw, the certified record
        before us on appeal, and the thorough opinion ofthe PCRA court dated.November
        19; 2014; We conclude that each ineffectiveness: claimraised by Appellant lacks
        merit and the PCRA eourt's Well~crafted opinion adequately addresses
        Appellant's claims on appeal, Accordingly; we affirrn on the basis ofthe PORA
        court's opinion and adopt its.reasoning. as· our· own, The paracs are directed to
        attach :a copy or that opinion in the: event ot.fuiflrer proceedings in this matter .

Commonwealth ,of'.P!ennsylvania v .. .i:ames Edwatd darte.t; It, J~S.20030-15, Docket No. 1651

WDA 2014> at 4(P~;Super; May 22, 2015) (mern.prandiun decision).
        On Septernber.21, 2015, Defe.rtd.ant filed his second :PCRA Petition, which is the basis for

the instant proceedings. On October    l~ 2015, the Court entered an Order and Notice     of Intention

to Dismiss Without Hearing In which the Court denied 'Defendant's request for appointment of·

counsel on this second PCRA Petition, .notified the Defendant of the Court's intent to dismiss

this second PCRA Petitfon without a, hearing, and e~plaJned it$ reasons, Those reasons were that

the issues raised were previously litigated and/or waived and' that Defendant's Petition was

untimely and thus the Court' did not havejurisdiction .. On 'October 23, 2015, Defendant filed a

Show of Cause, further arguing his position,
             The CQlirl 'then entered an Order on November 13, 2Rl 5 ·dismissing Defendant's. PCRA

  Jletitiort withou~ :a heari11g· forthe reasons preyio_usJy stated. On,J)ecember 14, 20J;5i Defendant
  filed a Notice of App.eat 'This Noti¢¢, 'however, did not -r¢{er to the Court' s Order of'November

      13, 2015, nor di:d it' containthe required filing fee; nor did it contain a Petition to Proceed in

  F onna Paµpetis.2 The Clerk then mailed. a Ietter: to befendan:t dated December 14, 2015, which

  infotm.ed· him of these d:eficiende:s in bis filing .. Then,. on December 31};. 2015.,. Defendant filed an

  Application for Leave to Appeal in F0n_na Paup eris along with                         a. second Notice ofAppeal,
             On January 12; 2016; the Court. entered an Order directing Defendant to file a Concise

  Statement of Matters Complained -of on Appeal, Defendant filed bis Concise Statement on

  February     .z, 2016.    In his Concise Statement, Defendant raises two issues. Pirst, he raises as an

  issue whether the Court erred' in failing to 'distihguisli b-¢twel;)11·.his· -previous argument of

  ineffective assistanee of counsel and              his instant argameat offacrallyattacking .the validityof the
  plea, Second~ he raises an issue of whetaer' the Court erred in determining his Petition was

  untimely; claiming that previous appeals tolled . the applicable                     time· period.
                                                            ANALYS!S
        A. Defendant1.s PCRA .Pedtion was not tirnely fifed and tberefore the Court does not

            havejurisdfotion to.consider the-merlts of his claims,

            Before the Court can address the merits of Defendant's arguments, it must first determine

  whether Defendant's. Petition was timely filed, In this case, Defendaat's petition is untimely .and


. 1 Al~hoµgh l)efendant'.s- first attetnpt~nt No.tide pf Appeal did :not contain. ei~ey the required, fee or a ];'etition to
  Proceed in Forma Pauperis, and did' not corre~tly·'ide,ntify- the .pertinent {)tder-, '.thes.e .fuattflrs d<>. no't nec.essarily
 affect the Jµ.dsdiction of the.·appeUa1~·.cott,.tt; bur tathet ~liow Jt·to. take any ,a:ppt'opri~t~ acttem. See, e.g; Pll.RAP,
  902 :(''F'aililh~· or''tj.TI app~ilnntto ta.~e ·!JTJY $t¢p other than :the timely fifing of a .nQffoe· -of appe-a:F dees not affect the
 ·•laHd'ity .of the appea(-but itfa subjecti9.,s1,1_ch acMt!.as the ~ppe,Uate ceurt-deems apprepriate.; }')1 Fir.st Union· Nat
 ]lank K FA Realty In•lts Cbrp;l 2000'PA Super 3'60'i :~ 9:; 812' A.2d: 7'19, 722-23 e'[T]he p.err~ctiol'l. of the appeal
  does notdepe11d ir1.at1ywa)"'Qn the. payment of the ftli'ng 'fee;''f                                         ,


                                                                    3
the Coutt therefore does .tiofhave jurjsdtction to consi\1er his Petition,, See, e,g., Commonwealth

· A.·,11·'·,
V,             s··6'A·
                  · · , •··3··a. ·· · ;17·3·:,   1·,,.,7·
                                                    Cf.< ·c'll)
                                                             'Ea. -·2'··0'. :·'14·y· ·1 ···"'·· · c· omm:On\¥e
                                                                               · .: \~Httttg           .·     ·a1'1:ti·· . V· ... ·p· a:h··y,   ·s·c4.s··· p·.a.3·   :1· 3· · .,. · 7·.·3··.7
                                                                                                                                                                                            . ·A
                                                                                                                                                                                               · · · •:·2a··2'1·',4

(1999)) ("PCRA time limits ate jurisdietional                                                          in nature, implicating a court's very power to

adjudicate a. controversy.").                                   ·

               Any .Petition for PCRA relief, "including a second or subsequent petition, shall be filed

within one year of the date the judgi;nent becomes final," unless the Defendant alleges and .proves

that one of three .enumerated exceptions· applies. 1+2 Pa.C.S.A. § 9545(b)(l). ''A judgment

becomes final at the                             eouelusion of' direct                       review, i11cluding. discretjona.ty                          review in the Supteme
Court ofthe Tltlited States and the :$,upreme·Coutt. ofPennsyl:vania, or at the expieationof.zime

for seeki11g the review," 42 pa;.;C.S .:A. § 9'545(b)(2). A,notice ofa,ppeal must be filed within.thirty

days> after Which an appellate court no longer-has jurisdiction to hear ,the case, Commonwealth v.

Bey,437 l?a.134; 136; 262 A.2d 144, 145 (1970); PaJl,A.P~ go:3;

               Defendant pled guilty on March 5,, 2013 and never filed
                                                                    ~-'i
                                                                                                                                       a direct            appeal. The judgment
                                                               .. 4~·      • ,.~"·-




therefeee became final. after Wednesday, April 3, 2013, thirty days later. His deadline to file a

PCRA was thus April 3, 2014, also a Thursday. The instant Petition, however, was filed on
                                                  /                                     .



September 21, 2015, over one year past th¢ deadline.

               Because Defendant's. Petition was not filed Within one year; it is untilnely and this Court

has no jurisdictid.n to consider the arguments nt~de in his Petition                                                                     unless one, ofthe enumerated

exceptions under 42 'Pa.G.8.A. § 9545(b)is                                                      satisfied. See :i&,, 1999 Pa.Super; 124, 734 A:2:d at

399-400;

               Th~ exceptions for railing to                                          fj1¢   a timely :PCM Petition provided under :Pa.C.S.A. §

9545(b) are:

                                                                          of interference· by
               (i) the failure to raise the claim previously was the result
               government officials with the presentation. of the claim in violation of the

                                                                                                   4
        Constitution or laws of this Commonwealth or the Constitution er 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
        Ooµrt of the United St~t~s or the Supreme Court ·Qf Pennsylvania after the time
        peripcl provided in this section and has been held by that court to apply
        retroactively.

42 Pa.C.S.A. ·§ 9545(b).

        At no time in his Petition does Defendant claim a retroactive constitutional :right. 42

Pa.C.S.A. ,§.9545(b)(iii)-. Thus this section does not-11pply,

        In Section 5(!} of hi~ P.etitiPfi~ P.e:fo11dant .cl~frns> reg~rdinggovemmental i'nterf¢ten·ce,

"The Commonwealth }tas changed dates, event.s, an:d withheld information from the Court and

the defense." Defendant      appears, as he has in the past, to               her    referring to the amended

Information which was previously addressed in his first PCRA Petition. Contrary                 to Defendant's
                                                          ',
repeated assertions that he "was unaware of these charges when entering into a plea deal," the

Court explained. in its first Rule ,1925(a) Opinion that Defendant knew of the amended

Information and agreed to enter      µ.is· guilty   plea tq    those   amendmeats, deriving a substantial

benefit from.that pleaRule 1925(a) Opinion, ·atJJ-11 (Nov,             19'i· 20:14), No miscenductwasfound
then, and Defendant · neither pleads nor proves. any differ~nt or ad·clitional misconduct now.

Rather, it appears that Defendant     merely wishes to         telitigate   issues   Which have .already been

addressed. ·

       To the extent that Defendant intends to argue governmental interference based upon

alleged ineffectiveness of his counsel (section 6(A) of his Petition refers to· his counsel as

"defense. attomey as counsel for the prosecutien"), ineffective assistance of counsel does not

qualify for the governmental .interference exception. 42 Pa.C.S.A .. § 9545(b)(4) fFor purposes of

                                                      5
this subchapter, "government officials" shall net include defense counsel, whether appointed or

i:etaiMd);Com. v. Crews,,. 58-1 Pa . .45, 53,, 8·63 A.2d 498., 503 {2.@04) ('1(I]t is well settled that the

atleged irieffecfi¥c:he$s of ail prior counsel.fncluding.first PCRA:cpunsel, does not fall within the

governmental interference exception.").

        Regarding Rfter'-discovel'e<i evidence, Section 5(U) of Defe.11~ant's Petition claims, "The

amended charges     were .a new ,set    of charges, 'with different dates and events, than wh&t I was

originally beirrg pros~outed ,foe•· Agaiµ1 this iss1;1e         wa.s '.already raised   during the: first PCRA

Petition. FuJ:ihel\ Defendant himselfstates in bis- P~titfort tb.athis .pasis for knewing the facts on

which , he bases his. PCRA was "personal observation 9f my sentenclrrg paperwork and

sentencing transcript." Thus- ibis was not after-discovered evidence, as Defendant claims. Rather,

Defendant was physically present and aware as the proceedings in this case occursed ..

        To the extent that Defendant's Petition appears to show that he is again complaining of

'ineffective assistance- of eouns,d, this :aiso 'does not excuse .a faiiJ.lre to meet the jurisdictional

timeliness requirements. See, e.g., Com. v. Edmiston1 61? Pa. 549~ 565-66, 65 _A3d J:39; 349

(2013;) cert .. den;ied, 134   s.o,   .639 CU ..s. 20'13) (•![WJe have previously r~Jecte4 attempts to

circumvent the. ·tii:neliness requirem ents   or the PCRA       by assertln.g prior counsel's in,effectivenes$

fot failing fimelyte raise a -olairn .. A$     Wf;'   have .explained, the nature        of the .9onstitµtJorial

violations ·a11eg~d has ,n9 :effect on the: ,application. of the PCRA ttwe bar. Rather; 'the ·-only
cognizableexceptions are setforth at Section 9545(b,)(l}'·').

        Simply stated, at no time has Defendant alleged or proven any facts or evidence that he
has since acquired which were unknown to 'him previously, or why such facts could not have

been   discovered by the exercise of due diligence in the previous proceedings. See

Con1monweaith v;. Medina, 2014 Pa.Super, 1:081 92 A,3d 1210) .12.16 (2014J (''Due diligence


                                                            .
                                                       .   6.
 demands that the petitioner take reasonable .steps to protect his own interests. A petitioner must

 explain. why he could not havelearned the new foct(s)          earlier with the exercise of due diligence,
 This rule is strictly enforced.'').

               Defendantin his. Cenciae Statement ap_pq:!iXS to. cla:im that·the pendency of appeals should

 have :tolled· the tini~tiness te·g:urremeht. This wdttld be true ,with J~gard to ,a qh'ect appeal,

 Defendant;. 'hpwevet~ did not ti1e El ilirecf appeal. Rather, he pJmceeded to file a PCRA Petition,

 the pendency of which does ~10t toll the 'time ,perio.d for subsequent PCRA Petitions. Se(;;            e.g;,

 Com.     v.   Rienzi, 573 Pa. 503, 506, 827 A2d 3.6.9, 370 (2003) (quoting Com. v; Lark. 560 Pa. 487,

 746 A.2d 585, 587 (2:bOOJ} ("[T]he Legislature enacted amendments to the· PCRA, 'Which

mandate that all.;petitions· fot post-convictio» relief, including second and subsequent petitions,

be filed       within:   one year ofthe date upon which the judgment became fina], unless .one ef three

enumerated exceptions apply.''"). Aspreviously stated, this subsequent PCRA Petition is beyond

the filing deadline.

           D~fen:da:nt fails. to. plead or prove facts th~l wouJd support either the govemmental

interference' or the aftei'-discovei;ed evidence (,W¢-eptions Which he asserts ht hi$· Petition. 42

PttC.$'.A, '.§ 9545(b)(l}. His .f>etltion is theref9re;u.11tfr1;1ely. Becausehls :Petition is iltitimely. the
Court does riot have .jurisdiction to consider Defendants PCRA Petifion, and it was therefore
properly denied.

    )3.   The Claiins raisetl l:>y Defendant in bis Petition have been previqus,ylltigated and/or

          waived a,nd heJs thereto.re ineligible for relief und,er tile Post.. Conv-icfion Relief Act.

          Jn.additiontt, Def¢ndant'sfailure to ·file,a timely PQR.A Petition,. Defendant simply· is not

eligible. for PCRA relief undez the Act because, inter alia, .his claims have been. previously

litigated and/or waived.


                                                       7
         To be eligible for PCRA refie~ the petition.~t niustpleadartd prove ·by a preponderance of.

 the eviden~e four ge11¢taI' requite.m:ertts; 42 Pa.Ct's.A. §,~:9541~9546.. First, the petitioner must

 ha:Ye been eonvicted       of a crime 11ttder. Pennsylvania law and subsequently sentenced to either
 incarceration. or probation. 42 Pa:.C.S.A. .§ 95430t), Second, the conviction· and sentence rnust

 have resulted from at least one of the errors Md/bt violations elu6idated: in § 9543(a)(2) of the

 PCRA. Id. Third, the allegation of errc:>t must nothave been previously litigate& or waived ·by the

petitioner.   let Fourth,   the petitioner must demonstrate. that the failure to Htigate the claim could

nothave been "the result of any rational, strategic or tactical de·cision ;by cows el." Id.

        Defendant· does meet the first requirement because he was convicted of a crime under

Pennsylvania law and has been sentenced to a period of In:qiu:cerati<;ln. Regarding the second

requirement, De:fendantola1m:s errors or vio.l~tiorts tn:idet § 9543(a}(Z)(i)~(iv) of th~ PCRA, I.e.,

constitutional vt~'flation, ineffective assistance of coµnsel, unlawfully induced guilty plea, and

improper obstt'.U<i:tfa:m by government officials o:f a ri.ght to appeal, Section :6(C} of Defeadanrs

Petition states. that he is com.tplaining of '~iofations of US;C. 14th amendment. Violations of

Pa.R.Crim.P. 564 and Rule 571.. Ineffective Counsel. and invatid plea agreement." Section 6(A)

of Defendant's Petition states:

       I was oflgina:lly arrested and prosecuted for crimes that.allegedly occurred on 8~1 ~
       20 l.O •. After selt;:cting a j Ul'.Y on these .offenses. and before trial, defense attorney as
       counsel for the prosecutiqn teacl1e~1:1 plea deal. Dµring ,a[sfoJ open colloquy, the
       prosecution amended the charged by adding (2) :additional changes and .nolle pros
       the tem.aining (7) counts. These new charges are of different events than
       occurring on 8-1~201().. Thes~ new charges. ate fron.1 crimes. that supposedly
       occurred 011. 8/6/2010 and 8/30/2010. I Was unaware of these charges when
       entering into a plea deal Twas under :the. Impression l was 'pleaiilg[sicJ to crimes
       from :8~1~2010. Furthermore a plea was entered ip.to. bef9re a,rtaignment

       Regarding this second' requirement of the Act,           Defendant has. tiot credibly. proven     the

violations he pfoa,ds. I>e.fendartt was: teptesented hy counsel at his gu:ilty plea, signed' the


                                                     8
 amended Information and the Guilty Plea Colloquy; entered his guilty p.h~a on the record,

 received a substantiel   pel)efit from the plea· including   charges with reduced weight of: the drugs

 as well .as a deferred :execution of sentence, wliich he then later failed to report for: Rule l925(a)

 Opinion, at 9-:11 ('Nov. 19, 2014). He even claimed at the hearing on his first PCRAthat he had

 lied under oath dt1tin:g his guilty plea. Id. at 9,.nA, Defendants repeated assertions that he. did

 not know what he was pleading to            ·are    simply incredible, and he fails to prove by a

 preponderance oftheevid.ence.any oftheviolationsrequiredby            the PCRA.

        Most clearly deficient in Defendant's Petition is his failure to meet the third requirement

 under the PCRA. The claims he raises have          been previously litigated   :and/or waived in the prior

proceedings and thus, under the Act, they .eannot agai11 serve-as a basis. for requesting relief. 42

Pa.C. s~A. .§ 9543(a){3).

       An issue lias been previously litigated if •1the bighest. a,p.pellate co:utt in which the

petitioner oouldhavehad     revfowasam~tter,ofrighthas nifod,onthe xrteritsof'the issue." Id .. at §

9544~a)(2). A PCRA claim is waived "if the :petitioner could have raised it but failed to do so

before trial, at tdal, dµting unitary review, on. appeal -or in a prior state pcstconvictroa
proceeding."   &   at§ 9544Gb)~

       Defendant wishes to argue irt his Concise ·statement that in his first Petition he only

complained: of ineffeetive assistance of counsel, and not as to the actual invalidity of the

amended Information and the entry of his plea. Defendant' s argument is· totally without merit.

The Court e1rpt'essly ac:r~r~ssed these issuss in its Qpirtibti. irt ultimately .concluding that

Defendant's ccunsel was ~ot.ineffecdve. Rtde 19:25:(aJ Qpinion,.at 11-12 (Nbv. 19, 2014).
       Based on .the Court's observation ofbefen:dant's demeanor and testimony at 'the
       time of his .plea compared with his later incredible. recanted testfrnony, :based on
       the credibility of Mr. Emmi's testimony, and considering' the favorable terms of
       the plea agreement Mr. Emmi secured for Defendant, this Court finds. that

                                                . 9
           Defep.da11t   has n:0t met his burden•9f ptovf~g. that he. was uiilaw:fµlly· imfoced into
           c;nterlng his .pl¢a. Nor ·is.th~ Coart· convinced that n.efend~t did not        u11detsta11d ·
           tllat he was plead.fog te reduced charges as outlined in the plea agreeinent, placed
           on the record, and memorialized by Defendant when he signed' the amended
           Inf~miatfon in. oren COU11, waiving .his arraignment to the redu~ed charg~s. N.T.
          3/5/13, at 22-24. The record clearly shows that Defendant was Infcrmed in open
          court of the reduced charges he was pleading to; the substantial benefit he
          obtained from pleadingto those.reduced eharges.mteems.ofthe.reduced weight
          and avoidance .of[the]mandatory· 111inimunt sentence. was .ex;p:lained to him, and
          he hims¢{f signed the: atnended.Infonn.aticm and•waived his arraignment.,Based            ()11'
          these fo'¢ts• clearly ptese11t. fuothe tecord1 .J)efettdarlt's a.tguni~ntthat Mt, En1nii·did
          not explain -to him thafhe was pleading to an, amended lnfcmnation qoes 11.ot even
          meet· the ar.gual;,le, merit pron;g for :ineffocJiv:e . assistance. counsel. S~e. S:needi 899
          A:2d at t07:Ct               -    ·                                                         ·

          Rather, based on the evidence and the record, this Court finds tha; Defendani's
          plea was indeed knowingly, intelligently, and· voluntarily made; Because his plea
          was knol;i,!f'ng/y; .'int¢#(gtnt{y; andvoluntar.ilymade, D¢fendt1.n,ti· arguments thathe
          wa,s- tnef!ectt;v.~~ t.epresente.d1iJJl counsel wtth r~gardto his en.tering a guilty plea
          have-11,r>,nefl:t. S~~Willis,.2(H3 Pa.Super;· 14l'i.68 A.3datlOot.:02.

 ld. ·(emphasiS a;dded).

          Defendant simply wishes to argue again regarding the amended Information and his

waiver of Arraignment. These issues were already unambiguously addressed by the Court in the

firstPCRA Proceedings. and by the Court's Opinion. Id. That Opinion was appealedand.affirmed
                                    .                                     .



by the Superior
         .      Court, which ad.opted the Court's
                                            .     reasomng . in its f'frst 1925(a) Opinion. Thus

these matters are previously
                  .          litigated
                                 .     and cannot; again ·.serve as a basis for requesting PCRA

relief.

          Furth~\ the issµes of ah amended Information and Arraigronent were .also waived by

failin,g to ·properly include them withln Defendant's first PCRA Petition, C.omn1onwealth v .

.Williams, 2006-Pa.S\iper; 121~ 900 A.2d.9.Q6, . 9d9(2006)(fiiilure to.ralse'lssueat         PCRA Petition

stage waives    .is~ue a:nd. precludes it on   appeal). Indeed, the! issues of   the amended     Information

and Atraignmertt werl$ first waived when Defendant entered his guilty plea. Com. v: Eisenberg,

98 A.3d · 1268,. 1275 (Pa. 2014) ('1[lJJpon.entty of a guilty plea, a defendant waives· all claims and

                                                      ro
 defenses other than those sounding in the jurisdiction of the court; the validity of the plea, and

 what has .been termedthe 'legality' ofthe semence imposed ... ."); Com. v. Jones, 593 Pa, 295,

 307, 929 A.2d 205, 212 (2007). (Defendant who plead guilty waived right to . challenge alleged

 defectin Information); Com. v. Montgomery,. 48'5 Pa.. 110, H4, 401 A.2cl 318, 319-20 (1979)

 (Defendant who .pled guilty waived ·right to challenge alleged defect in Indictment): Com. v. Hill;

427 Pa. t514',
         .
               617,. 235 A.2d 347, 349 (1967). {Defendant who plecl guilty waived right to
                                                         '




challenge validity of'erraignment.]

        Because Defendant's arguments have already be~fitai:sedin this Court and its decision

reviewed and affirmed' :by the- StiJ:Yerior Court, they are ptevi0usly litigated .. By entering a guilty

plea and by failing to raise them at. earlier stages in his criminal proceedings; Defendant's issues

are also waived. Because his issues are previously litigated and/or waived, they are not eligible

for relief under the PCRA. 42 Pa.C.S.A. § 9543(a)(3). Therefore Defendant's Petition was

properly denied without a hearing.

    C 'There was 'neither a    vfo'httion of the Rules of Criminal Procedure        nor prejudice to

       Defendant and therefc:,re      be is not eJ.ttitledt~ relief,
       Even if D¢fe~.danf's .Petition was notuntimelY and even if the issues heraises were not

previously Htigat(;d l\ncl/Qr waived1 still there was ne.violation o:fllules $64 or 571 as he alleges,

nor has he .beerr prejuclfoe~L The COutt notes the legal authbdties whtch Defendant cites in his

petition, to Wit,,.Corrt. v. Bricker, 20@5 PA Super 3'07; $82A.2d 1008, and Pa.R.Crim.P. $64,
                  '
571. Unfortunately for Defendant, the authorities hecites cut directly against his .arguments,

       Pa.R.Crim.P, 571(I>) states that a defendant may waive his arraignment where be is

represented by counsel and the defendant signs. and . files a written waiver meeting certain




                                                    11
 requirements.   Defendant did exactly that; as this Court has _previously observed. Thus the rule

 was not violated.

         Pa.R.Ci:im.P. 564 :states that an information may be amended "provided the information

 as amended does .nor dharge         an additional. or different offense," In Bricker> the case which

 Defendant cites> the. S4p'edor Court. explaj:11s preci.sely: the me?Lrtin:g :and pu11J)ose .of this rule.
         We 'have st~tedthat the putpo$.ie qfRt.i1e5l54 '~is.to .ensut.e that a· defendant is ftilly
         apptised ~f:the charges,. and to. :avoid pt~judiceby prohibiting the Iast minute
         addition ¢f ·aJ~f:'ged ,crhnfaal acts of which the defendant is. urtinforme~."
         CammortWMlth v: Dctvctlos, 779 A.2d lt90, 1194 {Pa:Super2001) (citation
         omitted). The test to be applied is!

                 [Wjhether the crimes specified in the original indictment or
                 information involve the same basic elements and evolved out of
                 the same factual situation as the crimes specified it1 the amended
                 indictment· or i11fot'm~tion. If so, then the defendant is deemed· to
                 have been .p1ac~4 on notice reg~tdihghis alleg~cl ctimJnal conduct.
                 r£;. however; th¢ amended' provistOn alleg~s a different set of
                 events; or the eleme11t's qr defenses to the ajnended crime are
                 materially different from the elements o.t defeases to the crime
                 originally 9hatg¢d, · such that the defendant would be prejudieed: l;'>y
                 the· change, th~ the amendment fa not: permltted.

Bricker, 2005 PA Super 3~7,         if 27, :882. A.2d at 10.rn (citi11;g· Commonwealth v. Davalos, 779
A;2d 119'0, 1194 (Pa.Super, 2001)). See also Com. v.Jvfentzer,;2:01J PA Supet 62, 18A.3d 1200,



        In this case, Defendant         was not cltarged· with additio1::tal crimes in the aniended

Information. Rather, in accordance with the plea. agreement, he was            charged with    fewer and less

serious crimes. In this case, the weight of the cocaine Defendant was charged with was reduced

from   146,9 gtams to 49 grams, with Defendant.receiving            only a thirty to sixty month sentence

instead of the seventy~two to ninety month sentence indicated by the Sentencing Guidelines.
Rule 1925(a) 'Opinion, at 10 (Novi 19, %01:4). This reduction, in addition to other considerations

such as the Commcnwealtf not requestirtga;pplication ofthe.mand.atory 111.inhnum sentence; was

                                                      12
 to · effectuate the· plea agreement from which Defendant ,plainly derived a substantial be)1eflt.

 Further; Defendant was capably tepresentecl at :th~ time of his plea, S-ee Jones, 59'.3 P·a, at 3'07,

929 A.2d at 212 (''It :is clear   that fa. defendant] .and his connsel, [are]well aware of the .charges'f

 when they have ''hegotfated Er·plea bargah1 :witll.Jb.e GomtnofiWealth:'').

         Despite Ms ·$lihs~quertt -dissati~factfon with his decision to enter a guilty plea, "the   law
does not require that'[~ defendant] be pleased with the-outcome.of his c:lecfsion to enter a.plea of

guilty ..    , ." Comtrtenwealth v .. Willis, 2013 Pa.Super. 143~ 68 A.3d 997, i002 {citing

Commonwealth· v. Anderson, 995 A.2d 1184~ 1192 (P~.Super. 2010)); Defendant fails to

demonstrate eitherthat there. was a violation of Rule 564 as explained by the Court in Bridker, or

that he has been prejudiced.

        Because there has been no violation of either Rule 564· or Rule 571 and .because

Defendant, with the assistance.of courtsel,waived his Arraignment and agreed witll the amended

Informatien in accorid.ance With a plea agreern¢nt front which h.e .greatly benefitted by



were properly·.de11ied.

                                            CONCLUSION

        For the aforementioned reasons, the issues which Defendant raises were ~r.operly denied

and th¥ decision.of'this   Court. should be affirmed ..                                                 OJ
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