Com. v. Washington, A.

J-S01013-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ALVIN WASHINGTON :

:

Appellant : No. 277 MDA 2024

Appeal from the PCRA Order Entered February 8, 2024

In the Court of Common Pleas of Berks County Criminal Division at

No(s): CP-06-CR-0005006-2013

BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: MAY 28, 2025

Appellant Alvin Washington appeals from the order dismissing his

untimely third Post Conviction Relief Act1 (PCRA) petition without a hearing.

Appellant argues that the PCRA court erred in concluding that he failed to

establish the newly-discovered fact exception to the PCRA time bar. We

affirm.

The underlying facts and procedural history of this matter are well

known to the parties. See PCRA Ct. Op., 12/29/23, at 1-4. Briefly, Appellant

entered an open guilty plea to one count of aggravated assault2 on January

20, 2015. That same day, the trial court sentenced Appellant to nine to twenty

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* Former Justice specially assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S. § 2702(a)(1).

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years’ incarceration. Appellant timely appealed, and this court affirmed

Appellant’s judgment of sentence on August 28, 2015.3 Appellant did not seek

allocatur with the Pennsylvania Supreme Court.

Appellant filed a timely first PCRA petition on November 12, 2015. The

PCRA court appointed counsel who filed a no merit letter pursuant to

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

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) on September 29,

2016. The PCRA court dismissed Appellant’s first petition without a hearing.

Appellant appealed the PCRA court’s dismissal, which this Court affirmed on

December 21, 2017.4 Appellant did not seek further appellate review.

Appellant filed a second PCRA petition on June 5, 2019. The PCRA court

dismissed Appellant’s second petition as untimely without an exception to the

PCRA’s time bar on May 15, 2020. Appellant appealed the dismissal, which

this Court affirmed on October 22, 2021.5 Appellant did not seek further

appellate review.

On January 13, 2023, Appellant filed his third PCRA petition, which is

the subject of this appeal. In his third petition, Appellant makes various claims

regarding the validity of his guilty plea, the validity of his sentence, and the

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3 Commonwealth v. Washington, 422 MDA 2015, 2015 WL 6087392 (Pa.

Super. filed Aug. 28, 2015) (unpublished mem.).

4 Commonwealth v. Washington, 638 MDA 2017, 2017 WL 6523287 (Pa.

Super. filed Dec. 21, 2017) (unpublished mem.).

5 Commonwealth v. Washington, 778 MDA 2020, 2021 WL 4932811 (Pa.

Super. filed Oct. 22, 2021) (unpublished mem.).

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effectiveness of plea counsel. Third PCRA Petition, 1/13/23, at 3-4, 8.

Appellant pleads the newly-discovered facts exception to the PCRA’s time bar

claiming that he recently discovered his guilty plea was invalid, that he was

“unlawfully charged with aggravated assault at Section 2702(a)(1),” and that

“[t]he court imposed an illegal sentence.” Id.

On December 29, 2023, the PCRA court filed a notice of intent to

dismiss, pursuant to Pa.R.Crim.P. 907, along with a memorandum opinion.

Appellant filed a response on January 25, 2024, and the PCRA court dismissed

Appellant’s third PCRA petition on February 8, 2024. Appellant filed a timely

notice of appeal.

On March 4, 2024, the PCRA court ordered Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),

“no later than twenty-one (21) days from the date of entry of this order.”

PCRA Ct. Order, 3/4/24. Accordingly, Appellant’s Rule 1925(b) statement was

due by March 26, 2024.6 Appellant filed a request for an extension of time to

file a Rule 1925(b) statement on March 14, 2024, seeking thirty additional

days to file his Rule 1925(b) statement. However, there is no order in the

certified record granting or denying this request, and Appellant failed to file a

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6 The PCRA court mailed the order on March 5, 2024. Defendant had 21 days

from that date to file a Rule 1925(b) statement. See Pa.R.A.P. 108(a)(1),

(d)(1) (stating that the date of entry of an order is the day the clerk of the

court mails or delivers copies of the order to the parties); Pa.R.A.P.

1925(b)(2)(i) (stating that a “judge shall allow the appellant at least 21 days

from the date of the order’s entry” to file a Rule 1925(b) statement).

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Rule 1925(b) statement. Instead, Appellant filed two documents, one styled

as an “Amended Response to PCRA Court’s Order of Intent to Dismiss” and

another styled as “Ineffective Assistance of Counsel, PCRA Supplement,” on

May 3 and May 20, 2024, respectively. On May 22, 2024, the PCRA court filed

a statement in lieu of opinion stating that it believed that its December 29,

2023, memorandum opinion adequately addressed all of Appellant’s potential

claims on appeal.

On appeal, Appellant raises the following seven issues:

1. Whether the [PCRA] court’s conclusion that Appellant was

aware of his newly discovered fact that his coerced guilty plea

is invalid due to a lack of waiver of his constitutional rights

against compulsory self-incrimination under the 5th

Amendment of the U.S. Constitution and the corresponding

Article of the [Pennsylvania] Constitution [is] supported by

facts of record?

2. Whether the [PCRA] court’s “presumption of waiver” of

Appellant’s rights against compulsory self-incrimination was

[free] of legal error when it failed to inform [] Appellant of his

rights against compulsory self-incrimination when the United

States Supreme Court previously decided that the presumption

of waiver from a silent record is [impermissible]?

3. Whether the [PCRA] court violated [] Appellant’s rights of “due

process” when it accepted his coerced guilty plea as knowing

and voluntary without informing him of constitutional rights

against compulsory self-incrimination as it convicted and

sentenced him to 9 to 20 years in the Pennsylvania Department

of Corrections?

4. Whether the [PCRA] court illegally sentenced [] Appellant when

it sentenced [the] Appellant to 9 to 20 years in state prison on

a charge of aggravated assault of which he was never lawfully

charged as the charge was added as an additional offense by

the amendment of the information?

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5. Whether [] Appellant’s direct appeal right[s] must be restored

as his direct appeal counsel was ineffective and abandoned him

on his first direct appeal?

6. Whether the PCRA Court erred when it [dismissed] []

Appellant’s PCRA Petition without conducting a[n] evidentiary

hearing when [] Appellant raise[d] a [genuine] issue of newly

discovered fact under the one year exception to file a PCRA

petition, that his guilty plea was invalid due to the lack of

waiver of his 5th Amendment right of the U.S. Constitution and

the corresponding Article of the [Pennsylvania] Constitution

against compulsory self-incrimination along with a genuine

issue of an illegal sentence that if these issues were resolved

in his favor would have entitled him to Post-Conviction

Collateral Relief ?

7. Whether direct appeal counsel was ineffective for not

performing in the best interest of [] Appellant due to the

conflict of interest of her working from the same Public

Defender’s Office as the trial counsel so she could not raise the

claim of trial counsel’s ineffectiveness at the guilty plea hearing

on direct appeal for his failure to protect [] Appellant at the

hearing from admitting to the allege[d] facts of a crime that

were not defined by the information or of counsel’s attachment

of the [affidavit] of probable cause to [Appellant’s] written

guilty plea colloquy without [Appellant’s] knowledge or

understanding of which could only be used by the court to

improperly determine a factual basis for its [acceptance] of []

Appellant’s coerced guilty plea when the information is the only

proper charging document that the court could use to properly

determine if there was a factual basis for [] Appellant entering

a plea of guilty?

Appellant’s Brief at 1-2 (some formatting altered).

In reviewing an order denying a PCRA petition, our standard of review

is well settled:

[O]ur standard of review from the denial of a PCRA petition is

limited to examining whether the PCRA court’s determination is

supported by the evidence of record and whether it is free of legal

error. The PCRA court’s credibility determinations, when

supported by the record, are binding on this Court; however, we

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apply a de novo standard of review to the PCRA court’s legal

conclusions.

Commonwealth v. Sandusky, 203 A.3d 1033, 1043 (Pa. Super. 2019)

(citations omitted and formatting altered).

The timeliness of a PCRA petition is a threshold jurisdictional question.

See Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014); see

also Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa. Super. 2019)

(stating that “no court has jurisdiction to hear an untimely PCRA petition”

(citation and emphasis omitted)). “A PCRA petition, including a second or

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

judgment of sentence became final, unless he pleads and proves one of the

three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).” Commonwealth v.

Jones, 54 A.3d 14, 16 (Pa. 2012) (citation and footnote omitted). A judgment

of sentence becomes final at the conclusion of direct review, or at the

expiration of time for seeking such review. See id. at 17. Courts may

consider a PCRA petition filed more than one year after a judgment of sentence

becomes final if the petitioner pleads and proves one of the following three

statutory exceptions:

(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

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(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). A petitioner asserting one of these exceptions

must file a petition within one year of the date the claim could have first been

presented. See 42 Pa.C.S. § 9545(b)(2). It is the petitioner’s “burden to

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

Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (citations

omitted and some formatting altered).

Appellant’s judgment of sentence became final on September 28, 2015,

thirty days after this Court affirmed his judgment of sentence on direct appeal,

and the time for seeking allowance of appeal in the Pennsylvania Supreme

Court expired. See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment becomes final at

the conclusion of direct review . . . or at the expiration of time for seeking the

review.”); Pa.R.A.P. 1113 (providing that an appellant has thirty days to file

a petition for allowance of appeal with the Pennsylvania Supreme Court).

Therefore, Appellant had one year from September 28, 2015, in which to file

a timely PCRA petition.

The record reflects that Appellant’s third PCRA petition, which is the

subject of this appeal, was filed on January 13, 2023, making it facially

untimely. See Jones, 54 A.3d at 16-17. Accordingly, the PCRA court lacked

jurisdiction to review Appellant’s third PCRA petition unless Appellant pleaded

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and proved one of the exceptions to the PCRA’s time-bar as set forth in 42

Pa.C.S.§ 9545(b)(1). See Albrecht, 994 A.2d at 1094.

Here, the record reflects that defendant pled the newly-discovered facts

exception under 42 Pa.C.S. § 9545(b)(1)(ii). See Appellant’s Brief at 5-6;

see also Third PCRA Petition at 3.

To establish the newly-discovered fact exception to the PCRA time bar,

a petitioner must demonstrate that he did not know the facts upon which he

based his petition and could not have learned those facts earlier by the

exercise of due diligence. Commonwealth v. Brown, 111 A.3d 171, 176

(Pa. Super. 2015) (citations omitted). Due diligence requires that the

petitioner take reasonable steps to protect his own interests. Id.

Appellant raises three potential newly-discovered facts in his third PCRA

petition. See Third PCRA Petition at 3. First, Appellant claims he recently

discovered that he “did not waive his 5th Amendment right of ‘self-

incrimination’ . . . before entering a guilty plea.” Id. Second, Appellant claims

he recently discovered that he was “unlawfully charged with aggravated

assault at Section 2702(a)(1) by the amendment of the information as an

additional charge . . . [which removed] the Court[’s] . . . jurisdiction to convict

on said charge.” Id. Third, Appellant claims he recently discovered that “the

court imposed an illegal sentence upon [him] when it filed to follow the letter

of the law in imposing fines, costs and restitution and by sentencing [him] on

[the aggravated assault] that was never lawfully charged.” Id.

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First, as to Appellant’s argument about his failure to waive rights at his

guilty plea hearing, the PCRA court concluded:

This claim was already raised in [Appellant’s] appeal to the

Superior Court and his judgment of sentence was affirmed. See

Commonwealth v. Washington, 422 MDA 2015, 2015 WL

6087392 (Pa. Super. Aug. 28, 2015) (unpublished decision).

Specifically, the Court found that “[t]he certified record contains

ample evidence in both the written and oral colloquies that

[Appellant] entered into the guilty plea fully informed and

voluntarily.” Id. at *2. Thus, this claim is waived. See

Commonwealth v. Spotz, 47 A.3d 3, 76 (Pa. 2012) (“a

petitioner must show that the claims of error have not been

previously litigated or waived.”); 42 [Pa.C.S.] § 9543(a)(3).

More importantly, as the Court found, [Appellant’s] plea

was entered knowingly, intelligently, and voluntarily.

Thus, his waiver of his Fifth Amendment right against self-

incrimination was not previously unknown to him. In fact,

such a waiver is clearly the very basis upon which the entry of a

plea of guilty is premised. Our courts have consistently held that

“it is presumed that [a defendant entering a guilty plea] was

aware of what he was doing, and the burden of proving

involuntariness is upon him.” Commonwealth v. Willis, 68 A.3d

997, 1002 (Pa. Super. 2013).

PCRA Ct. Op. at 6-7 (some formatting altered and emphasis added). After

careful review, we find that the PCRA court’s conclusion is supported by the

record and free of legal error.

Second, Appellant argues that he was unlawfully charged with

aggravated assault due to an improper amendment of the information. Third

PCRA Petition at 3; see also Appellant’s Brief at 8. Appellant argues that his

discovery of the improper amendment is a new fact that satisfies the PCRA’s

time bar exception. Third PCRA Petition at 3.

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The PCRA court concluded:

[Appellant] next relies on the Commonwealth’s amendment

of the information prior to the entry of his plea. However,

[Appellant] fails to provide any support for the proposition

that the amendment of the information prior to entry of a

guilty plea, to which a defendant was informed, may be

considered as [a] previously unknown fact[] to serve as the

basis for an exception to the time bar under the PCRA.

Likewise, [Appellant] fails to cite to any caselaw supportive

of his position.

PCRA Ct. Op. at 7. After review, we conclude that Appellant has failed to show

that he did not know or could not have learned of this information through the

exercise of due diligence. See Brown, 111 A.3d at 176. We find the PCRA

court’s conclusion supported by the record and free of legal error.

This Court notes that Appellant also argues that he did not discover the

new “facts” regarding his guilty plea or the amendment of the information in

his case until he was informed of the law by “jailhouse lawyer[s]” that

reviewed his case. Appellant’s Brief at 5; see also Third PCRA Petition at 3-

4; Response to Notice of Intent to Dismiss, 1/25/24, at 2; Amended Response

to PCRA Court’s Order of Intent to Dismiss, 5/3/24, at 2. However, discovery

of case law is not a newly-discovered fact that satisfies the PCRA’s time bar.

See Commonwealth v. Reid, 235 A.3d 1124, 1148 (Pa. 2020) (stating that

a judicial opinion is not a fact that satisfies Section 9545(b)(1)(ii) of the

PCRA). Accordingly, this argument does not satisfy the PCRA’s time-bar.

Finally, Appellant argues he recently discovered he received an illegal

sentence when the court “failed to follow the letter of the law in imposing

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fines, costs and restitution and by sentencing defendant on a charge that was

never lawfully charged.” Third PCRA Petition at 3. Appellant explains that the

court “failed to ask [Appellant] if he intended to oppose restitution before the

guilty plea hearing,” that he was not informed that the court intended to order

restitution, that the court failed to put the payee of the restitution on the

record, and that the court failed to determine if he could pay restitution before

imposing it. Third PCRA Petition at 4.

The PCRA court concluded that:

[Appellant] alleges that the court imposed an illegal sentence

because the court “failed to follow the letter of the law in imposing

fines, costs and restitution and by sentencing the defendant on a

charge that was never lawfully charged.” Again, [Appellant]

provides no support for such a position, and we will not advocate

on his behalf to justify this view. [Appellant] fails to plead how

the court “failed to follow the letter of the law[,]” or how it resulted

in an illegal sentence. Significantly, [Appellant] fails to

demonstrate how these qualify as facts that were unknown to him.

PCRA Ct. Op. at 7-8 (citations omitted). After careful review, we find that the

PCRA court’s conclusion is supported by the record and free of legal error.

We note that Appellant, without citing any caselaw, argues that “illegal

sentences are [unwaivable] and can be brought up at any time in a properly

raised proceeding” and that he need not satisfy an exception to the PCRA’s

time bar to raise an illegal sentencing claim. Response to Notice of Intent to

Dismiss, 1/25/24, at 2; see also Appellant’s Brief at 8-9. However,

Appellant’s assertion is incorrect. A PCRA court must have jurisdiction to

address the merits of an illegal sentencing claim. See Commonwealth v.

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Jackson, 30 A.3d 516, 521-23 (Pa. Super. 2011) (holding that a petitioner is

required to plead and prove a timeliness exception when raising an illegal

sentencing claim in a facially untimely PCRA petition). Accordingly, this

argument does not satisfy an exception to the PCRA time bar or make

Appellant’s third PCRA petition timely.

Based upon the reasons above, the PCRA court correctly determined

Appellant’s third PCRA petition was untimely and that he failed to establish an

exception to the PCRA’s time bar. Because the third PCRA petition was

untimely and no exception applied, the PCRA court lacked jurisdiction and

correctly dismissed Appellant’s petition. See Ballance, 203 A.3d at 1031;

see also Albrecht, 994 A.2d at 1094. Accordingly, we affirm the PCRA

court’s order dismissing Appellant’s third PCRA petition as untimely.7

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/28/2025

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7 In light of our conclusion that the PCRA lacked jurisdiction to address

Appellant’s third PCRA petition, we need not address whether Appellant filed

a timely Rule 1925(b) statement.

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