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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
J-S20043-17
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.
-2-
J-S20043-17
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
-3-
J-S20043-17
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
-4-
J-S20043-17
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
-5-
J-S20043-17
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
-6-
J-S20043-17
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.
-7-
J-S20043-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
-8-