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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICKAEL SMITH :
:
Appellant : No. 1467 WDA 2018
Appeal from the PCRA Order Entered August 27, 2018
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001721-2016
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED APRIL 15, 2019
Appellant, Mickael Smith, appeals from the order entered in the Beaver
County Court of Common Pleas, which denied his second petition brought
pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On September 28, 2016, Appellant entered an open guilty plea to two
counts of aggravated indecent assault of a child under 13, where Appellant
sexually abused two juveniles during 2014 and 2015. The court sentenced
Appellant on February 9, 2017, to an aggregate term of 12 to 30 years’
imprisonment; the court also determined Appellant is a sexually violent
predator and required him to register for life as a sexual offender. On
February 17, 2017, Appellant filed a motion to withdraw the guilty plea, which
the court denied on February 21, 2017. Appellant did not file a direct appeal.
On January 8, 2018, Appellant timely filed a pro se PCRA petition. The
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* Retired Senior Judge assigned to the Superior Court.
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PCRA court appointed counsel on January 16, 2018, who filed a petition to
withdraw and a no-merit letter pursuant to Commonwealth v. Turner, 518
Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213
(Pa.Super. 1988) (en banc), on April 12, 2018. That same day, the court
issued notice of its intent to dismiss pursuant to Pa.R.Crim.P. 907, and granted
counsel’s petition to withdraw. The PCRA court denied relief on May 3, 2018.
On July 26, 2018, Appellant filed pro se his second PCRA petition. The
PCRA court issued Rule 907 notice on August 1, 2018; Appellant responded
pro se on August 22, 2018. The PCRA court denied relief on August 28, 2018.
Appellant timely filed a pro se notice of appeal on September 27, 2018.1
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA
petition, including a second or subsequent petition, shall be filed within one
year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at the
conclusion of direct review, including discretionary review in the U.S. Supreme
Court and the Pennsylvania Supreme Court, or upon expiration of the time for
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1 This appeal is properly before this Court, where Appellant submitted his
notice of appeal to prison authorities on September 27, 2018, within the
required 30-day appeal period. See Pa.R.A.P. 903(a); Commonwealth v.
Chambers, 35 A.3d 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46
A.3d 715 (2012) (stating pro se prisoner’s document is deemed filed on date
he delivers it to prison authorities for mailing).
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seeking the review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to
the PCRA time-bar allow for very limited circumstances to excuse the late filing
of a petition; a petitioner asserting a timeliness exception must file a petition
within 60 days of when the claim could first have been presented. 42
Pa.C.S.A. § 9545(b)(1)-(b)(2).2
Instantly, the judgment of sentence became final on or about March 23,
2017, following expiration of the 30 days for filing a direct appeal with this
Court. See Pa.R.A.P. 903(a). Appellant filed the current petition on July 26,
2018, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant
attempts to invoke the new-facts exception per Section 9545(b)(1)(ii),
claiming he was unaware that he could file a PCRA petition while in federal
prison. Appellant does not assert when he discovered this “new fact” or how
he could not have ascertained this “new fact” by the exercise of due diligence.
See Commonwealth v. Hart, 199 A.3d 475, 481 (Pa.Super. 2018) (stating
to satisfy new-facts exception of PCRA, petitioner must plead and prove fact
was unknown and could not have been ascertained by exercise of due
diligence). Therefore, Appellant failed to satisfy both the 60-day rule and the
exception claimed. Thus, Appellant’s current petition remains time-barred,
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2 As of December 24, 2018, Section 9545(b)(2) now allows that any PCRA
petition invoking a timeliness exception must be filed within one year of the
date the claim could first have been presented. See Act 2018, Oct. 24, P.L.
894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment
does not apply to Appellant’s case, which arose before the effective date of
the amendment.
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and the PCRA court lacked jurisdiction to review it on the merits. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2019
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