Com. v. Ware, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDREW WARE
Appellant : No. 31 EDA 2019
Appeal from the Order Entered November 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013506-2012
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 09, 2019
Andrew Ware (Appellant) appeals pro se from the order dismissing his
second petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. Upon review, we affirm.
In Appellant's direct appeal, this Court stated:
[Appellant] entered a negotiated guilty plea to murder in the third
degree, possession of an instrument of crime, violations of the
Uniform Firearms Act, and two counts of recklessly endangering
another person, in exchange for an aggregate sentence of 30 to
60 years' imprisonment.
Commonwealth v. Ware, 30 EDA 2014, at *1 (Pa. Super. Feb. 24, 2015)
(unpublished memorandum) (footnote omitted). This Court affirmed
Appellant's judgment of sentence, noting that the "case is simply not a
'borderline' case, given that [Appellant] offered no facts in support of his
* Retired Senior Judge assigned to the Superior Court.
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contention in his motion that he did not enter his plea knowingly, voluntarily
or intelligently." Id. at *5. Appellant petitioned for allowance of appeal, which
the Pennsylvania Supreme Court denied on November 2, 2015.
Commonwealth v. Ware, 126 A.3d 1285 (Pa. 2015).
On August 15, 2016, Appellant filed his first PCRA petition. The PCRA
court appointed counsel, who filed a Turner/Finley' no -merit letter and
motion to withdraw as counsel on April 10, 2017. The PCRA court issued
notice of its intent to dismiss the petition pursuant to Pennsylvania Rule of
Criminal Procedure 907 on May 5, 2017. The PCRA court dismissed the
petition on June 9, 2017, and granted counsel's request to withdraw from
representation. Appellant did not appeal that decision.
On November 2, 2017, Appellant filed the underlying pro se PCRA
petition, his second. The PCRA court issued its Rule 907 notice on October
23, 2018, and dismissed the petition on November 19, 2018.2 Appellant filed
this pro se appeal. Appellant filed a concise statement of matters complained
of on appeal and the PCRA court issued an opinion, although the record
indicates that the PCRA court did not order the filing of a concise statement.
See In re Estate of Boyle, 77 A.3d 674, 676 (Pa. Super. 2013) (with regard
1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
2 The docket reflects that the delay was due to multiple continuances and five
"assignments of judge."
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to the preservation of Appellant's issues on appeal, it is the trial court's order
that triggers an appellant's obligation under the rule).
Instantly, Appellant raises several claims on appeal. He assails the
validity of his guilty plea and sentence, and challenges trial counsel's
effectiveness and the trial court's failure to allow Appellant "to present
mitigating evidence." See Appellant's Brief at iv, vi.
However, before addressing Appellant's claims, we must examine the
timeliness of Appellant's petition, as the PCRA's time bar implicates our
jurisdiction and may not be disregarded. See Commonwealth v. Bennett,
930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for relief,
including second and subsequent petitions, must be filed within one year of
the date on which the judgment of sentence becomes final. Id. There are
three 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
(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). Any petition attempting to invoke these
exceptions "shall be filed within 60 days of the date the claim could have been
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presented." 42 Pa.C.S.A. § 9545(b)(2); see Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000).3
Upon review, we agree with the Commonwealth that Appellant's petition
is untimely.4 See Commonwealth Brief at 4-7. The Pennsylvania Supreme
Court denied Appellant's petition for allowance of appeal on November 2,
2015. Appellant did not seek a writ of certiorari with the United States
Supreme Court. Therefore, Appellant's judgment of sentence became final on
February 1, 2016, when the 90 day period for Appellant to file a petition for a
writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, "a
judgment 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[ ]"); U.S. Sup. Ct. R. 13(1) (stating "a petition for a writ of certiorari
to review a judgment in any case ... is timely when it is filed with the Clerk of
this Court within 90 days after entry of the judgment[ ]").
3 Act 146 of 2018 amended 42 Pa.C.S.A. §9545(b)(2), effective December
2017, and provides that a PCRA petition invoking a timeliness exception must
be filed within one year of the date the claim could have been
presented. Previously, a petitioner had 60 days from when the claim could
have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3.
As Appellant's petition was filed on November 2, 2017, the change does not
impact Appellant or our analysis.
4 Although the PCRA court addressed the merits of Appellant's issues in its
January 25, 2019 opinion, "we may affirm the PCRA court's decision on any
basis." Commonwealth v. Charleston, 94 A.3d 1012, 1028 (Pa. Super.
2014) (quotations and citation omitted).
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Appellant had one year- until February 1, 2017 - to timely file his
PCRA petition. As Appellant filed the petition on November 2, 2017, it is
untimely, and we are without jurisdiction to consider the merits of Appellant's
appeal unless he has pled and proved one of the three timeliness exceptions.
See Bennett, 930 A.2d at 1267.
Our review reveals that Appellant focuses on the merits of his claims,
without pleading and proving that he qualifies for an exception to the PCRA's
time bar. See PCRA Petition, 11/2/17; see also Appellant's Brief at vi - 10.
Accordingly, we lack jurisdiction to examine the merits of the claims Appellant
presents on appeal.
Order affirmed.
Judgment Entered.
Jseph D. Seletyn,
Prothonotary
Date: 8/9/19
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