Com. v. Ross, T.

J-S50039-18

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

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

TERRENCE ROSS, :

:

Appellant. : No. 375 WDA 2018

Appeal from the PCRA Order, January 31, 2018,

in the Court of Common Pleas of Allegheny County,

Criminal Division at No(s): CP-02-CR-0015085-2013,

CP-02-CR-0015091-2013.

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:

Terrence Ross appeals pro se from the order denying as untimely his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

The pertinent facts and partial procedural history have been

summarized as follows:

In 2013, police filed two criminal complaints against

[Ross] charging him with various offenses related to

multiple knifepoint robberies on Carson Street in Pittsburgh,

Pennsylvania. On December 15, 2014, [Ross] pled guilty to

a total of five counts of robbery, two counts of aggravated

assault, two counts of simple assault, and one count each of

criminal mischief and access device fraud. As part of the

plea deal, the Commonwealth and [Ross] agreed to an

aggregate term of 20 to 40 years of incarceration, which the

trial court accepted and imposed. No direct appeal resulted.

On March 31, 2015, [Ross] filed a pro se PCRA petition.

The PCRA court appointed counsel to represent [Ross]. The

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PCRA court granted several extensions of time for appointed

counsel to file an amended PCRA petition, which counsel

filed on February 12, 2016. The Commonwealth filed an

answer to the PCRA petition after it was granted an

extension to do so. On March 22, 2016, the PCRA court

entered an order pursuant to Pa.R.Crim.P. 907, giving

[Ross] notice of its intent to dismiss the amended PCRA

petition without an evidentiary hearing. On May 18, 2016,

the PCRA court dismissed [Ross’] PCRA petition.

Commonwealth v. Ross, 170 A.3d 1233 (Pa. Super. 2017), unpublished

memorandum at 1-2 (footnote omitted).

Ross appealed to this Court, raising interrelated ineffectiveness claims

regarding the entry of his guilty plea. Finding no merit to any of them, we

affirmed his judgment of sentence. Id. at 7. On June 16, 2017, our Supreme

Court denied Ross’ petition for allowance of appeal. Commonwealth v.

Ross, 174 A.3d 1030 (Pa. 2017).

On December 11, 2017, Ross filed another pro se PCRA petition, his

second, in which he alleged the ineffectiveness of PCRA counsel. On January

9, 2018, the Commonwealth filed an answer to the petition, in which it

asserted that the petition was untimely. That same day, the PCRA court issued

Pa.R.Crim.P. 907 notice of its intent to dismiss Ross’ PCRA petition without a

hearing. Ross filed a response. By order entered February 1, 2018, the PCRA

court denied as untimely Ross’ second PCRA petition. This appeal followed.

Both Ross and the PCRA court have complied with Pa.R.A.P. 1925.

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Before addressing the arguments Ross makes on appeal,1 we must first

determine whether the PCRA court correctly determined that his second PCRA

petition was untimely filed. This Court’s standard of review regarding an order

dismissing a petition under the PCRA is to ascertain whether “the

determination of the PCRA court is supported by the evidence of record and is

free of legal error. The PCRA court’s findings will not be disturbed unless there

is no support for the findings in the certified record.” Commonwealth v.

Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that that he

meets an exception to the time for filing the petition, set forth at 42 Pa.C.S.A.

sections 9545(b)(1)(i), (ii), and (iii).2 A PCRA petition invoking one of these

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1 Ross’ pro se brief does not include a statement of questions involved. See

Pa.R.A.P. 2116 (a) (providing “[n]o question will be considered unless it is

stated in the statement of questions involved or is fairly suggested thereby”).

As discussed infra, because we agree that the PCRA court lacked jurisdiction

to consider Ross’ second PCRA petition, Ross’ failure to comply with this

procedural rule is immaterial.

2 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of

interference of 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.

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statutory exceptions must “be filed within 60 days of the date the claims could

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2). Asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

Here, because Ross did not file an appeal to this Court after the trial

court sentenced him on December 15, 2014, his judgment of sentence became

final thirty days thereafter, or on January 14, 2015. Thus, for purposes of the

PCRA’s time bar, Ross had to file his PCRA petition by January 14, 2016. Ross

filed his second petition on December 11, 2017. Thus, the petition is untimely,

unless Ross satisfied his burden of pleading and proving that one of the

enumerated exceptions applies. See Hernandez, supra.

Ross has failed to prove any exception to the PCRA’s time bar. In an

effort to establish Section 9545(b)(1)(ii), he argues that he did not find out

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(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), (ii), and (iii).

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certain “information that was unknown to him” until he actually reviewed the

transcripts from his guilty plea and sentencing. Ross’s Brief 10. Since he did

not receive them until February 16, 2016, he claims he has established due

diligence. Id. (citing Commonwealth v. Burton, 121 A.3d 1063 (Pa. Super.

2015)). Ross then summarily claims that his first PCRA counsel was

ineffective for failing to raises issues based upon this newly discovered

information.

This Court has explained Section 9545(b)(1)(ii)

“has two components that must be alleged and proved.

Namely, the PCRA petitioner must establish that: 1) the

facts upon which the claim is predicated were unknown to

him and 2) could not have been ascertained by the exercise

of due diligence. If the petitioner alleges and proves these

two components, then the PCRA court has jurisdiction over

the claim under this subsection.”

Commonwealth v. Brown, 111 A.3d 171, 176-177 (Pa. Super. 2015)

(quoting Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007)

(emphasis in original).

Here, the PCRA court found that the Section 9545(b)(1)(ii) time-bar

exception did not apply because, the “new facts” he alleged in his petition

involved claims of first PCRA counsel’s ineffectiveness, which are not

recognized as facts under the PCRA statute. PCRA Court’s Opinion, 4/23/18,

at 4 (citing Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.

2000)). We agree. See 42 Pa.C.S.A. § 9545(b)(4); Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (explaining that “[i]t is well settled

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that allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA”).

Thus, because Ross has failed to prove any time-bar exception, the

PCRA court properly concluded that his second petition was untimely, and

therefore the court lacked jurisdiction to grant him post-conviction relief.

Accordingly, we affirm the PCRA court’s order denying Ross’ second PCRA

petition.

Order affirmed.

Judge Ott joins this Memorandum.

Judge Bowes concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2018

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