J-S58014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRIAN JAMES SMITH                          :
                                               :
                       Appellant               :   No. 299 WDA 2019

             Appeal from the PCRA Order Entered January 28, 2019
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001379-2015


BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 20, 2019

       Brian James Smith appeals, pro se, from the order dismissing his second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546. Smith’s petition is facially untimely, and he has failed to plead

and prove any of the statutory exceptions to the PCRA time-bar. Therefore,

the PCRA court rightfully dismissed the petition. Accordingly, we affirm.

       In April of 20151, Smith was caught on surveillance camera at a

McDonald’s restaurant passing a note to the cashier in which he demanded

money from the register and threatened to stab the cashier with a knife, which

he was carrying.




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1 Smith was on parole at the time of the instant offense for a separate offense
in South Carolina.
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       On September 1, 2015, Smith plead guilty to one count each of criminal

attempt of robbery, terroristic threats, and possessing instruments of crime

(“PIC”). On October 13, 2015, a hearing was held at which Smith was

scheduled to be sentenced. However, prior to sentencing Smith filed a motion

to withdraw his guilty plea. Due to the pending motion, sentencing was

deferred and a pre-sentence investigation (“PSI”) report was ordered.

       On November 13, 2015, the court denied Smith’s motion to withdraw

guilty plea. Smith was sentenced to sixty-nine to one-hundred and fourteen

month’s incarceration for criminal attempt of robbery, thirty to sixty months’

incarceration for terroristic threats, and twenty-one to sixty month’s

incarceration for PIC. All sentences were ordered to run concurrently. No post-

sentence motions or direct appeal was filed.

       On October 24, 2016, Smith filed, pro se, his first PCRA petition alleging

his trial counsel was ineffective for failing to investigate his case and

misleading him into taking a plea, and his sentence was excessive considering

nothing was taken and no one was hurt. Counsel was appointed who

subsequently filed a petition to withdraw along with a no-merit letter pursuant

to Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).2 Based on

____________________________________________


2 The record reflects counsel was appointed to represent Smith during the
pendency of his first PCRA proceedings, and clearly attempted to withdraw
from that representation. However, there is no indication in the record before
us that defense counsel was ever formally permitted to withdraw.
Nevertheless, we find this issue moot. The right to representation for a first



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the allegations made by counsel in the no-merit letter, the PCRA court issued

a notice of intent to dismiss the petition pursuant to Pa.R.A.P. 907 and

subsequently dismissed the petition.

       On September 6, 2018,3 Smith filed a “Motion to Modify and Reduce

Sentence”, contending the court erred by deviating from the standard

sentencing range and failing to provide adequate reasons for the deviation on

the record. The court interpreted this motion as a second PCRA petition. See

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(“[T]he PCRA provides the sole means for obtaining collateral review, and …

any petition filed after the judgment of sentence becomes final will be treated

as a PCRA petition”).4 The PCRA court issued notice of its intent to dismiss the

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

dismissed the petition, finding it untimely and finding Smith had failed to raise

any meritorious claims. This timely appeal followed.



____________________________________________


PCRA petition extends only throughout the appeals process. See Pa.R.Crim.P.
904(F)(2). Since no appeal was taken from the order dismissing Smith’s first
PCRA petition, the order became final as a matter of law on March 6, 2018.
See Pa.R.A.P. § 903(a). Therefore, counsel’s representation ceased upon
termination of the appeal process.

3 Smith’s petition was time-stamped and docketed on January 28, 2019, after
the PCRA court issued its Rule 907 Notice. The PCRA court determined that
the petition was filed on September 6, 2018, pursuant to the prisoner mailbox
rule. See Rule 907 Notice, 12/4/2018, at 2 n.1.

4On appeal, Smith does not challenge the court’s determination that his
motion was a petition under the PCRA.

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      Prior to reaching the merits of Smith’s claims on appeal, we must first

consider the timeliness of his PCRA petition. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014).

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. The PCRA’s timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the burden
      of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote omitted).

      Since Smith did not file a post-sentence motion or a direct appeal, his

judgment of sentence became final on December 13, 2015, when his time for

seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)

(judgment of sentence becomes final “at the conclusion of direct review … or

at the expiration of time for seeking the review”). The instant petition – filed

almost three years later – is patently untimely. Thus, the PCRA court lacked

jurisdiction to review Smith’s petition unless he was able to successfully plead

and prove one of the statutory exceptions to the PCRA’s time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      The PCRA provides three exceptions to its time bar:

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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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Exceptions to the time-bar must be pled in

the petition, and may not be raised for the first time on appeal. See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

waived and cannot be raised for the first time on appeal). Further,

      Although this Court is willing to construe liberally materials filed
      by a pro se litigant, pro se status generally confers no special
      benefit upon an appellant. Accordingly, a pro se litigant must
      comply with the procedural rules set forth in the Pennsylvania
      Rules of the Court. This Court may quash or dismiss an appeal if
      an appellant fails to conform with the requirements set forth in
      the Pennsylvania Rules of Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)

(citations omitted).

      Even liberally construed, Smith has failed to plead and prove that any

of his claims constitute a valid exception to the PCRA time-bar. In fact, Smith

failed to make any attempt to plead an exception. See Motion to Modify and




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Reduce Sentence, filed 9/6/2018. Accordingly, we affirm the PCRA court’s

order denying Smith’s petition as untimely.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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