J-S41013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SAMUEL LEE HALL                          :
                                          :
                    Appellant             :   No. 2757 EDA 2017

                Appeal from the PCRA Order August 4, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0002984-2007,
            CP-15-CR-0002985-2007, CP-15-CR-0002986-2007,
            CP-15-CR-0002987-2007, CP-15-CR-0002988-2007


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JULY 17, 2018

      Appellant, Samuel Lee Hall, appeals pro se from the August 4, 2017,

order entered in the Court of Common Pleas of Chester County dismissing as

untimely his fifth petition filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-9546. After a careful review, we affirm.

      The relevant facts and procedural history are as follows: On August 13,

2008, after a non-jury trial on stipulated facts, the trial court convicted

Appellant of five counts of delivery or possession with intent to deliver

(“PWID”) (cocaine), one count of PWID (marijuana), one count of PWID




____________________________________
* Former Justice specially assigned to the Superior Court.
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(MDMA1      and   methamphetamine),            one   count   of   possession   of   drug

paraphernalia, and four counts of criminal use of a communications facility.2

On that same date, the trial court sentenced Appellant to an aggregate of

fifteen years to thirty years in prison.          Appellant filed a timely, counseled

appeal to this Court, and we affirmed his judgment of sentence on July 29,

2009. Appellant did not seek review in our Supreme Court.

       On September 9, 2009, Appellant filed his first, pro se PCRA petition,

and counsel was appointed to represent him. Counsel subsequently filed a

petition to withdraw, along with a Turner/Finley3 “no-merit” letter. By order

entered on December 11, 2009, the PCRA court dismissed Appellant’s PCRA

petition and permitted counsel to withdraw. Appellant did not file a notice of

appeal.

       Appellant filed his second, pro se PCRA petition on July 29, 2010, and

following the PCRA court’s dismissal of the petition, Appellant filed an appeal.

We affirmed the dismissal of Appellant’s second PCRA petition, and Appellant

filed a petition for allowance of appeal, which our Supreme Court denied.




____________________________________________


1   MDMA is the acronym for                    3,4-methylenedioxymethamphetamine,
colloquially known as “ecstasy.”

2 35 P.S. § 780-113(a)(30), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S. §
7512(a), respectively.

3 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc.)

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      Appellant filed his third, pro se PCRA petition on May 21, 2012, and the

PCRA court dismissed the petition. Appellant filed an appeal, and this Court

dismissed Appellant’s appeal on May 9, 2013, due to his failure to return a

docketing statement as required by Pa.R.A.P. 3517.

      Appellant filed his fourth, pro se PCRA petition on June 19, 2014, and

the PCRA court dismissed the petition. Appellant filed an appeal, and this

Court affirmed the dismissal of his fourth PCRA petition.

      Appellant filed the instant pro se PCRA petition, his fifth, on or about

May 31, 2017. On June 2, 2017, the PCRA court provided notice of its intent

to dismiss Appellant’s PCRA petition, and on July 6, 2017, Appellant filed a pro

se response. By order entered on August 4, 2017, the PCRA court dismissed

Appellant’s fifth PCRA petition, and this timely, pro se appeal followed.

      Before addressing the merits of Appellant’s issues, we must initially

determine whether his PCRA petition is timely. With regard to the filing of

petitions under the PCRA, this Court has observed:

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is timely
      raises a question of law. Where the petitioner raises questions of
      law, our standard of review is de novo and our scope of review
      plenary. An untimely petition renders this Court without
      jurisdiction to afford relief.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (citations

omitted).

      A PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A.

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§ 9545(b)(1). A judgment is 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.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 provided in this section and has been held
               by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

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.



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Walters, 135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42

Pa.C.S.A. § 9545(b)(2).

      Here, this Court affirmed Appellant’s judgment of sentence on July 29,

2009, and Appellant did not file a petition for allowance of appeal with our

Supreme Court.    Consequently, his judgment of sentence became final on

August 28, 2009, when the thirty-day period for filing a petition for allowance

of appeal with our Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 1113. He had one year from that date, or until August 30, 2010, to

file a timely PCRA petition.   See 42 Pa.C.S.A. § 9545(b).        Therefore, his

current petition, filed on or about May 31, 2017, is facially untimely. See 42

Pa.C.S.A. § 9545(b)(1).

      This does not end our inquiry, however, as, in his appellate brief,

Appellant attempts to invoke the timeliness exception of 42 Pa.C.S.A. §

9545(b)(1)(ii) relating to the “newly-discovered fact” exception. Specifically,

Appellant contends the following:

            Petition is timely because of new facts exception that was
      previously unknown to [] Appellant.
            [Appellant] was sent legal mail by th[e] [trial] [c]ourt on
      January 17, 2017, inside was content of Remand/Remittal. After
      receiving the legal mail, Appellant asked his family to explain it to
      him, along with contacting the Prothonotary Office of th[e] [trial]
      [c]ourt, and also the Clerk of Court of Chester County to find out
      what the legal mail was about.
            On April 5, 2017, [Appellant] was informed by [his] family
      that it was [a] sentence pursuant to [a] Negotiated Sentence
      Agreement for possession of Methamphetamine. This is new to
      Appellant because he did not know he had entered a Negotiated
      Sentence Agreement for Methamphetamine. Commonwealth v.

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       Burton, [638 Pa. 687, 158 A.3d 618 (2017)]. Within the next
       sixty (60) days exception rule that started on April 5, 2017,
       Appellant submitted his PCRA petition on May 31, 2017.

Appellant’s Brief at 1-2 (citation omitted).

       Our Supreme Court has held that the PCRA “makes clear that where ...

the petition is untimely, it is the petitioner’s burden to plead in the petition

and prove that one of the exceptions applies.” Commonwealth v. Beasley,

559 Pa. 604, 741 A.2d 1258, 1261 (1999). Furthermore, “[t]hese exceptions

must be specifically pleaded or they may not be invoked.” Commonwealth

v. Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006) (citation omitted). We

have also stated that generally “[a] new and different theory of relief may not

be successfully advanced for the first time on appeal.” Commonwealth v.

Santiago, 980 A.2d 659, 666 n. 6 (Pa.Super. 2009) (citation omitted). See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).

       In the case sub judice, in his fifth PCRA petition and response to the

PCRA court’s notice of intent to dismiss, Appellant failed to acknowledge the

facial untimeliness of the petition or argue that any of the exceptions are

applicable.4


____________________________________________


4In his response to the PCRA court’s notice of its intent to dismiss, Appellant
averred generally:
      [Appellant] learn[ed] through family and other resources that he
      was sentence[d] under a negotiated sentence agreement[.]



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Rather, he acknowledges for the first time in his appellate brief that his instant

PCRA petition is facially untimely and he argues for the first time that he is

entitled to Subsection 9545(b)(1)(ii)’s “newly-discovered fact” exception.

Appellant did not plead properly or preserve the basis upon which he now

relies to satisfy the newly-discovered facts timeliness exception, and

therefore, we affirm the dismissal of his fifth PCRA petition.5

       Affirmed.




____________________________________________


      Appellant’s family call[ed] in to the courts asking questions and
      inquiring about [] Appellant’s case conducting their own
      investigation and doing their own research. . . .Appellant and his
      family had to do their own investigation and research to discover
      that [] Appellant had been sentence[d] and convicted under a
      negotiated sentence agreement.
Appellant’s Response, filed 7/6/17, at 2, 4 (citation omitted). Assuming,
arguendo, this was Appellant’s attempt to present the timeliness exception of
Subsection 9545(b)(1)(ii), which he now presents on appeal, Appellant failed
to aver in his response, as he does now, when he/his family learned of the
negotiated sentence agreement.         See Walters, supra (indicating an
appellant must plead and prove that he raised an exception within sixty days
of the date the claim first could have been presented).

5 To the extent Appellant attempts to raise on appeal Subsection
9545(b)(1)(iii)’s “new constitutional right” exception on the basis of
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc) and
Commonwealth v. Hopkins, 632 Pa. 36, 117 A.3d 247 (2015), we note that
Appellant did not plead his entitlement to this timeliness exception in the PCRA
court.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/18




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