J-S20043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID SCOTT OAKES                          :
                                               :
                      Appellant                :   No. 2927 EDA 2016

                  Appeal from the PCRA Order August 10, 2016
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0002511-2011


BEFORE:      BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                    FILED APRIL 18, 2017

       David Scott Oakes appeals pro se1 the order entered August 10, 2016,

in the Court of Common Pleas of Chester County, that dismissed his first

petition filed pursuant to the Pennsylvania Post Conviction Relief Act, 42

Pa.C.S. § 9541–9546. Oakes seeks relief from the judgment of sentence to

serve an aggregate term of imprisonment of 3 years and 8 months to 10

years, imposed after he entered an open plea to two counts of aggravated

assault (graded as felonies of the second degree), one count of endangering

the welfare of children (graded as a misdemeanor of the first degree), and

____________________________________________


1
  Appointed counsel filed a Turner/Finley no-merit letter and a petition for
leave to withdraw, which was granted by the PCRA court.                 See
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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one count of corruption of minors (graded as a misdemeanor of the first

degree).2,   3
                 Oakes contends “the failure of counsel to file for, or inform the

appellant of, a reconsideration motion is part of a well[-]established pattern

of ineffectiveness.”      Oakes’ Brief, at 1 (unnumbered).      Based upon the

following, we affirm.

        The PCRA court’s opinion fully recounts the procedural history, and we

need not reiterate it here. See PCRA Opinion, 11/14/2016, at 1–4.

        Briefly, we state that on September 4, 2012, the trial court sentenced

Oakes, and no post-sentence motion or appeal was filed. On May 9, 2016,

Oakes filed a pro se “Motion to Modify Sentence Nunc Pro Tunc,” which the

PCRA court treated as a first PCRA petition.        Counsel was appointed and

subsequently filed a petition for leave to withdraw and a Turner/Finley no-

merit letter.     On July 20, 2016, the PCRA court issued Pa.R.Crim.P. 907

notice of intent to dismiss based on the untimeliness of the petition, and

granted Oakes 20 days to respond to the notice. On August 4, 2016, Oakes

filed a pro se response, entitled “Memorandum to the Court.”           On August

10, 2016, the PCRA court dismissed Oakes’ petition on the grounds of

untimeliness, and allowed PCRA counsel to withdraw.           This pro se appeal

followed.
____________________________________________


2
    18 Pa.C.S. §§ 3125(a), 4304, 6301(a)(1), respectively.
3
    The trial court determined Oakes was not a Sexually Violent Predator.




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      On September 12, 2016, the PCRA court issued an order directing

Oakes to file within 21 days a concise statement pursuant to Pa.R.A.P.

1925(b). Oakes failed to comply with the PCRA court’s order, and the PCRA

court found that the issues on appeal had been waived.         See PCRA Court

Opinion, 11/14/2016, at 15, citing Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).

      Nonetheless, the PCRA court addressed the claim raised in Oakes’

PCRA petition in the event that this Court “should conclude that the text of

[Oakes’] Notice of Appeal constitutes his Concise Statement.” PCRA Court

Opinion, 11/14/2016, at 15. The PCRA court recognized that Oakes’ notice

of appeal does set forth the arguments that form the basis of his appeal. To

the extent that Oakes’ notice of appeal may be regarded as his concise

statement, we likewise review his appeal.

      “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.’” Commonwealth v. Taylor, 620 Pa. 429, 67
      A.3d 1245, 1248 (Pa. 2013) (quoting Commonwealth v.
      Rainey, 593 Pa. 67, 928 A.2d 215, 223 (Pa. 2007)).

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016).

      “It is well-settled that the PCRA’s time restrictions are jurisdictional in

nature.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). A

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

becomes final. See 42 Pa.C.S. § 9545(b)(1). Under the PCRA, “a judgment



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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).

      In the event a PCRA petition is filed beyond the one year time limit,

there are three statutory exceptions that permit review of an untimely PCRA

petition. Specifically, to overcome the timeliness requirements, a petitioner

must plead and prove one of the following exceptions:

      (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 the United States or the
      Supreme Court of Pennsylvania after the time period provided in
      this section and has been held by that court to apply
      retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Furthermore, a petitioner invoking a

timeliness exception must file a petition within 60 days of the date the claim

could have been presented. 42 Pa.C.S. § 9545(b)(2).

      Here, Oakes’ judgment of sentence became final for PCRA purposes on

October 4, 2012, 30 days after sentencing, when the time for filing a direct

appeal expired.   See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a) (30 day

appeal period).   As such, the present petition, filed May 9, 2016 — over

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three and one-half years after the judgment became final — is patently

untimely unless Oakes has satisfied one of the three statutory exceptions

stated above.   Oakes has failed to do so here.

      In his brief, Oakes argues plea counsel was ineffective in failing to file

for, or inform him of, a motion for reconsideration of sentence.          Oakes

concludes:

      Having demonstrated the reasonableness of entering a
      reconsideration motion and a pattern of ineffectiveness the
      defendant argues not specifically that a failure to file for a
      motion of reconsideration represents ineffectiveness of counsel
      but the failure to inform the defendant of this basic and
      perfunctory motion and his option to have his sentence
      potentially reduced by it[s] use, does. The defendant cannot
      avail himself of legal alternatives if he is not aware of their
      existence. Counsel has the responsibility to inform his client of
      basic information and alternatives that can affect his length of
      incarceration. Failure to perform this constitutes ineffectiveness
      of counsel. The defendant should not be time barred from access
      to a PCRA petition that he could not possibly use due to a
      personal lack of legal expertise and knowledge combined with
      the failure of counsel to exercise due diligence. It is our position,
      for all the foregoing reasons, that then defendant’s appeal has
      merit.

Oakes’ Brief at 5-6 (unnumbered) (italics in original).

      A similar claim was set forth by Oakes in his August 4, 2016

“Memorandum to the Court,” which he filed in response to the PCRA court’s

907 notice. The PCRA judge, the Honorable Anthony A. Sarcione, in his Rule

1925(a) opinion, explained Oakes’ PCRA petition was untimely because:

      [Oakes’] claim that he ‘should not be time barred from access to
      a PCRA petition that he could not possibly use due to a personal
      lack of legal expertise and knowledge,’ in light of what he alleges
      is a meritorious claim of ineffective assistance of counsel, is not

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      a recognized exception to the PCRA timeliness requirements of
      42 Pa.C.S.A. § 9545(b)(1). [Oakes] did not explain why he could
      not have filed his Motion to Modify Sentence Nunc Pro Tunc prior
      to the expiration of three (3) years and seven (7) months from
      the date his Judgment of Sentence became final. It did not take
      any particular legal expertise or knowledge for him to file it when
      he did, on May 9, 2016. The question is why didn’t he file it
      earlier.

PCRA Court Opinion, 11/14/2016, at 5.      The PCRA court proceeded to an in-

depth discussion of Oakes’ claim in light of the statutory exceptions. See id.

at 6-24. The PCRA court ultimately determined:

      Because [Oakes] has failed to timely plead or prove any one of
      the exceptions set forth at 42 Pa.C.S.A. § 9545(b)(1) to the
      PCRA’s one (1) year filing deadline, [Oakes’] first PCRA petition
      is untimely and neither this Court nor any other Pennsylvania
      Court has jurisdiction to entertain his claims, regardless of
      whether any of them have substantive merit.

PCRA Opinion, 11/14/2016, at 24 (citations omitted). Our review confirms

the PCRA court’s analysis.

      Oakes’ claim that plea counsel was ineffective in failing to file for, or

inform him of, a motion for reconsideration does not fall within any of the

statutory exceptions. First, the PCRA provides that, “for purposes of this

subchapter, ‘government officials’ shall not include defense counsel, whether

appointed or retained.” 42 Pa.C.S. § 9545(b)(4). Therefore, Oakes’ claim

does not fall within the “governmental interference exception. 42 Pa.C.S. §

9454(b)(1)(i).   Second, it is well settled that “a conclusion that previous

counsel was ineffective is not a newly discovered ‘fact’ entitling Appellant to

the benefit of the exception for [newly-discovered facts].” Commonwealth


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v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000). Therefore, Oakes’ claim

does not satisfy the newly-discovered fact exception.          42 Pa.C.S. §

9545(b)(1)(ii). Finally, Oakes’ ineffectiveness claim does not implicate the

PCRA’s exception for a newly recognized constitutional right that applies

retroactively. 42 Pa.C.S. § 9545(b)(1)(iii).

      In addition to Oakes’ failure to plead and prove the applicability of an

exception set forth in Section 9545(b)(1), he has failed to prove his petition

was “filed within 60 days of the date the claim could have been presented.”

See 42 Pa.C.S. § 9545(b)(2). Oakes’ contention that his lack of legal

expertise prevented him from discovering his claims is belied by the record

that shows he was advised on the record at sentencing of his post-sentence

rights, and he offers no explanation as to why he did not raise his present

claim until May 9, 2016.

      In light of Judge Sarcione’s comprehensive, 25-page opinion, no

further discussion is warranted by this Court.    Accordingly, we affirm the

PCRA court’s order that dismissed Oakes’ first PCRA petition on the basis

that it is untimely and meets no exception to the PCRA timeliness

requirement.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




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