J-S17014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

KEITH ALLEN EBERT,

                        Appellant                  No. 2361 EDA 2016


               Appeal from the PCRA Order of June 22, 2016
              In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0004816-2012


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 12, 2017

      Appellant, Keith Allen Ebert, appeals pro se from the order entered on

June 22, 2016, dismissing as untimely his second petition filed pursuant to

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

affirm.

      We briefly summarize the facts and procedural history of this case as

follows. On June 5, 2013, a jury convicted Appellant of two counts of driving

under the influence (DUI). Thereafter, the trial court found Appellant guilty

of careless driving and disorderly conduct. On July 5, 2013, the trial court

sentenced Appellant to an aggregate term of one year and 45 days to five

years and 45 days of imprisonment.     We affirmed Appellant’s judgment of

sentence on October 24, 2014. See Commonwealth v. Ebert, 108 A.3d
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122 (Pa. Super. 2014) (unpublished memorandum).             Appellant did not

appeal that determination.

       On December 3, 2014, Appellant filed a pro se PCRA petition.       The

PCRA court appointed counsel who eventually filed a “no-merit” letter and

motion to withdraw comporting with Commonwealth v. Turner, 544 A.2d

927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).         The PCRA court granted PCRA counsel’s motion to

withdraw as counsel.        On July 1, 2015, the PCRA court denied Appellant’s

first PCRA petition without an evidentiary hearing. We affirmed the denial of

relief on May 6, 2016. See Commonwealth v. Ebert, 151 A.3d 1138 (Pa.

Super. 2016). Again, Appellant did not appeal our determination.

       On May 17, 2016, Appellant filed the current pro se PCRA petition. On

May 25, 2016, the PCRA court issued notice of its intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907.             Appellant

responded.     On June 22, 2016, the PCRA court filed an order dismissing

Appellant’s PCRA petition as untimely, not subject to an exception.       This

timely pro se appeal resulted.1



____________________________________________


1
    Appellant filed a pro se notice of appeal on July 18, 2016. On July 21,
2016, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on July 29, 2016. On September 14, 2016, the PCRA court issued an
opinion pursuant to Pa.R.A.P. 1925(a), relying largely upon its rationale in
its May 25, 2016 Rule 907 notice and June 22, 2016 order denying relief.



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        On appeal, Appellant presents the following issues pro se for our

review:

          1. Did the PCRA court err when it denied and dismissed
             [Appellant’s] petition as untimely filed and [thereby
             depriving the court of] jurisdiction to hear the petition?

          2. Did trial counsel’s failure in not requesting the discovery
             of all chemical tests and related data under Vehicle Code
             1547(g), and in not investigating for sources of errors[,
             constitute] ineffective assistance of counsel?

          3. Did the trial court and/or the prosecution violate the
             Brady[2] rule for failing to disclose to [Appellant] all
             evidence under its control or possession under
             Pa.R.Crim.P. 573(B)(1)(a)?

          4. [Was trial counsel ineffective for failing to challenge
             Appellant’s blood alcohol content (BAC) at the time of
             arrest?]

          5. Did the sentencing court abuse its discretion in deviating
             from the sentencing guidelines in that the judge[’]s
             reason was [based upon the] recommendation from the
             District Attorney, which was unreasonable?

Appellant’s Brief at 8 (complete capitalization omitted).

        Our standard of review is clear:

          In reviewing the denial of PCRA relief, we examine whether
          the PCRA court's determination is supported by the record
          and free of legal error. The scope of review is limited to the
          findings of the PCRA court and the evidence of record,
          viewed in the light most favorable to the prevailing party at
          the trial level.    It is well-settled that a PCRA court's
          credibility determinations are binding upon an appellate
          court so long as they are supported by the record. However,
____________________________________________


2
    Brady v. Maryland, 373 U.S. 83 (1963).



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       this Court reviews the PCRA court's legal conclusions de
       novo.

       We also note that a PCRA petitioner is not automatically
       entitled to an evidentiary hearing. We review the PCRA
       court's decision dismissing a petition without a hearing for
       an abuse of discretion. The right to an evidentiary hearing
       on a post-conviction petition is not absolute. It is within the
       PCRA court's discretion to decline to hold a hearing if the
       petitioner's claim is patently frivolous and has no support
       either in the record or other evidence.

                         *              *         *

       Before we may address the merits of Appellant's arguments,
       we must first consider the timeliness of Appellant's PCRA
       petition because it implicates the jurisdiction of this Court
       and the PCRA court. Pennsylvania law makes clear that
       when a PCRA petition is untimely, neither this Court nor the
       trial court has jurisdiction over the petition. The period for
       filing a PCRA petition is not subject to the doctrine of
       equitable tolling; instead, the time for filing a PCRA petition
       can be extended only if the PCRA permits it to be extended.
       This is to accord finality to the collateral review process.
       However, an untimely petition may be received when the
       petition alleges, and the petitioner proves, that any of the
       three limited exceptions to the time for filing the petition,
       set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
       met.

       The PCRA provides, in relevant part, as follows.

       § 9545. Jurisdiction and proceedings

                           *            *       *

       (b) Time for filing petition.—

       (1)    Any petition under this subchapter, including a second
              or subsequent petition, shall be filed within one year
              of the date the judgment becomes final, unless the
              petition alleges and the petitioner proves that:




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            (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.

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.

        42 Pa.C.S.A. § 9545(b).

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)

(original quotations, brackets, and most citations omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).         “[A]

judgment 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.A. § 9545(b)(3). Here, we affirmed Appellant’s judgment

of sentence on October 24, 2014. Thereafter, Appellant had 30 days to file a

petition for allowance of appeal to our Supreme Court, but did not.       See

Pa.R.A.P. 1113(a). Thus, Appellant’s judgment of sentence became final on

November 24, 2014.      As such, Appellant’s current PCRA petition, filed on

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May 17, 2016, was clearly outside of the PCRA’s one-year jurisdictional

timing requirement.

      In his second and fourth issues presented on appeal, Appellant claims

that trial counsel provided ineffective assistance of counsel.      Ineffective

assistance of counsel is not one of the three exceptions to the PCRA’s

one-year time bar as set forth above.       Moreover, our Supreme Court has

consistently held that “a claim for ineffective assistance of counsel does not

save an otherwise untimely [PCRA] petition for review on the merits.”

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). We

may not reach the merits of these claims.

      In his fifth issue presented, Appellant claims the trial court abused its

discretion in sentencing Appellant “without considering any extenuating or

mitigating circumstances.” Appellant’s Brief at 13. However, “[r]equests for

relief with respect to the discretionary aspects of sentence are not

cognizable in PCRA proceedings.”     Commonwealth v. Wrecks, 934 A.2d

1287, 1289 (Pa. Super. 2007).      Accordingly, Appellant’s fifth issue is not

cognizable under the PCRA and should have been raised on direct appeal.

Again, even if Appellant couched his claim in terms of ineffective assistance

of counsel, which he does not, such a claim cannot save an otherwise

untimely PCRA petition for review. See Gamboa-Taylor, 753 A.2d at 785.

      In his fourth issue presented, Appellant claims the Commonwealth

violated the rule annunciated in Brady, by failing to disclose material and

exculpatory evidence in its possession.      Appellant’s Brief at 10, 12.   He

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suggests that tests showed his blood alcohol concentration (BAC) upon

arrest was “0.13%, which changed on his post-arrest BAC test showing

0.16%.”      Id.    at 10.        Thus, Appellant ostensibly    argues that      the

Commonwealth had additional BAC information available that it withheld

from him.

      In addressing the viability of a Brady claim under the PCRA’s

governmental       interference    and   unknown   facts   exceptions,   under   42

Pa.C.S.A. §§ 9545(b)(1)(i) and 9545(b)(1)(ii) respectively, our Supreme

Court has previously determined:

          Although a Brady violation may fall within the
          governmental interference exception [to the PCRA’s
          one-year time bar], the petitioner must plead and prove the
          failure to previously raise the claim was the result of
          interference by government officials, and the information
          could not have been obtained earlier with the exercise of
          due diligence. Section 9545(b)(1)(ii)'s exception requires
          the facts upon which the Brady claim is predicated were not
          previously known to the petitioner and could not have been
          ascertained     through      due    diligence.    [Section]
          9454(b)(1)(ii)'s exception does not contain the same
          requirements as a Brady claim, noting [our Supreme Court]
          made clear the exception set forth in subsection (b)(1)(ii)
          does not require any merits analysis of the underlying
          claim. Rather, the exception merely requires that the facts
          upon which such a claim is predicated must not have been
          known to appellant, nor could they have been ascertained
          by due diligence.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008) (internal

citations and quotations omitted). Any PCRA petition invoking an exception

to the PCRA’s one-year jurisdictional timing requirement “shall be filed within




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

§ 9545(b)(2).

      Here,   Appellant   has     not   specified   the   information   that   the

Commonwealth allegedly withheld from him. Moreover, Appellant concedes

that he learned the results of BAC testing on or around March 30, 2012.

See Appellant’s Brief at 10. As discussed above, these shortfalls are fatal to

Appellant’s efforts to invoke claimed exceptions to the PCRA’s jurisdictional

time-bar. As such, the PCRA court properly determined it lacked jurisdiction

to hear Appellant’s current claims.

      Finally, Appellant contends that he was entitled to an evidentiary

hearing on his PCRA petition. “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”     Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa.

Super. 2008) (citations omitted). “A reviewing court must examine the

issues raised in the PCRA petition in light of the record in order to determine

whether the PCRA court erred in concluding that there were no genuine

issues of material fact and in denying relief without an evidentiary hearing.”

Id. Having determined there were no genuine issues of material fact, there

was no basis for an evidentiary hearing.       Hence, Appellant’s first issue as

presented lacks merit, as well.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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