J-S16043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
v. :
:
PAUL GREGORY SHIMP :
:
Appellant : No. 1313 MDA 2017
:
Appeal from the PCRA Order August 25, 2017
in the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0002040-2014
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED MAY 21, 2018
Appellant, Paul Gregory Shimp, appeals, pro se, from the order of
August 25, 2017,1 dismissing as untimely his first petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
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1 On July 6, 2017, the PCRA court entered its Rule 907 notice of intent to
dismiss and advised Appellant of his opportunity to respond within 20 days.
On August 21, 2017, Appellant filed a pro se notice of appeal to this Court.
The PCRA court entered its final order dismissing Appellant’s pro se petition
on August 25, 2017. Although Appellant’s notice of appeal was premature
when filed, we will regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d
616, 618 n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed
after entry of Rule 907 notice but before final order dismissing PCRA petition).
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* Retired Senior Judge assigned to the Superior Court.
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We take the underlying facts and procedural history in this matter from
the PCRA court’s November 7, 2017 opinion and our independent review of
the certified record.
On March 11, 2015, [Appellant] plead [sic] guilty to [t]heft
by [u]nlawful [t]aking, and agreed to enter the Dauphin County
Veteran’s Court Program for a thirty-six (36) month intermediate
punishment sentence. [Appellant] was represented by Kristen
Weisenberger, Esquire.
[Appellant], through counsel, filed a [m]otion to [w]ithdraw
[g]uilty [p]lea and [w]ithdraw as [c]ounsel on March 26, 2015.
The [m]otion to [w]ithdraw [g]uilty [p]lea was denied by the
Honorable Bruce F. Bratton, now retired. [Appellant did not file a
direct appeal].
On May 17, 2016, [Appellant] incurred new charges at
Docket Number CP-22-CR-3439-2016. As a result, the court
conducted a revocation hearing in Veteran’s Court on August 19,
2016. Former Judge Bratton revoked [Appellant’s] intermediate
punishment, and re-sentenced him to twenty-four (24) months of
probation concurrent with his sentence on Docket Number CP-22-
CR-3439-2016. [Appellant] did not file a direct appeal.
Appellant filed his first pro se PCRA petition on December 2,
2016. [The PCRA petition challenged only the original March 11,
2015 guilty plea, it did not challenge the revocation proceedings].
Jonathan W. Crisp, Esquire was appointed by [the PCRA c]ourt to
represent [Appellant] on his PCRA. On January 23, 2017,
[Appellant] filed a motion requesting to proceed pro se throughout
the PCRA proceedings. [The PCRA c]ourt conducted a Grazier[2]
hearing via video conference on April 7, 2017, wherein [Appellant]
again stated his intention to proceed pro se. At the conclusion of
the hearing, [the PCRA c]ourt granted his request and permitted
him leave to proceed pro se, as well as his request to amend his
PCRA petition. [On April 13, 2017, Appellant filed an amended
PCRA petition]. On July 6, 2017, [the PCRA c]ourt gave
[Appellant] notice of [its] intent to dismiss his PCRA petition. [See
Pennsylvania Rule of Criminal Procedure 907(1)]. [Appellant]
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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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filed a response on July 20, 2017. [The PCRA c]ourt subsequently
dismissed his PCRA petition on August [25], 2017. [Appellant]
filed a timely [n]otice of [a]ppeal on August 21, 2017. On October
3, 2017, [Appellant] was directed to file a concise statement of
errors complained of on appeal. [See Pa.R.A.P. 1925(b).
Appellant filed a timely Rule 1925(b) statement on October 27,
2017. See id. On November 7, 2017, the PCRA court filed an
opinion. See Pa.R.A.P. 1925(a)].
(Trial Court Opinion, 11/07/17, at 1-2) (footnotes omitted).
On appeal, Appellant raises the following questions for this Court’s
review.
I. Did the P.C.R.A. [c]ourt err in dismissing [Appellant’s]
[PCRA] [p]etition without a hearing when [c]ounsel, Kristen
Weisenberger, Esq. rendered ineffective assistance of [c]ounsel
for failing to adequately prepare a defense which compelled
[Appellant] to enter into an involuntary, unknowing, and
[un]intelligent plea bargain?
II. Did the P.C.R.A. [c]ourt err in dismissing [Appellant’s]
[PCRA] [p]etition without a hearing when [c]ounsel, Kristen
Weisenberger, Esq. rendered ineffective assistance of [c]ounsel
for failing to properly object to the defective guilty plea colloquy?
(Appellant’s Brief, at 4).
Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Great
deference is granted to the findings of the PCRA court, and these
findings will not be disturbed unless they have no support in the
certified record.
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
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trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on December 2, 2016. The PCRA
provides that “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of
sentence became final on April 10, 2015, thirty days after the trial court
imposed sentence and Appellant did not file a direct appeal with this Court.
See id.; Pa.R.A.P. 903(a). Therefore, Appellant had one year, until April 11,
2016,3 to file a timely PCRA petition. Because Appellant did not file his petition
until December 2, 2016, the petition is facially untimely. Thus, he must plead
and prove that he falls under one of the exceptions at Section 9545(b) of the
PCRA. See 42 Pa.C.S.A. § 9545(b)(1).
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that:
(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
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3 April 10, 2016, was a Sunday.
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Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
Id. Further, a petitioner who wishes to invoke any of the above exceptions
must file the petition “within [sixty] days of the date the claim could have
been presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has
repeatedly stated that it is an appellant’s burden to plead and prove that one
of the above-enumerated exceptions applies. See, e.g., Commonwealth v.
Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916
(2008).
Here, Appellant does not argue or even mention any of the above-listed
exceptions. Instead, he argues that he received ineffective assistance of plea
counsel. (See Appellant’s Brief, at 8-15).4
Accordingly, because Appellant failed to plead and prove that his petition
falls within one of the enumerated exceptions to the PCRA time-bar, it is
untimely. Thus, the PCRA court properly dismissed it. We are without
jurisdiction to consider the merits of his appeal.
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4 We note that this Court has long held that an appellant does not present an
exception to the time-bar by claiming ineffective assistance of counsel. See
Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), appeal
denied, 839 A.2d 351 (Pa. 2003) (“[A]ttempts to utilize ineffective assistance
of counsel claims as a means of escaping the jurisdictional time requirements
for filing a PCRA petition have been regularly rejected by our courts.”)
(citations omitted).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2018
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Com. v. Shimp, P.
Combined Opinion