J

### -S45019-19
NON-PRECEDENTIAL DECISION - SEE 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 CountyCriminal Division at No(s): CP-51-CR-0013506-2012
BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.* MEMORANDUM BY MURRAY, J.: 

### FILEDAUGUST 

### 09, 

### 2019 Andrew Ware 

### (Appellant) appeals 

### pro se 

### from the 

### order dismissing his second 

### petition filed underthe PostConviction ReliefAct (PCRA), 42 Pa.C.S.A. §§ 

### 9541-9546. Upon review, we 

### affirm. In

### Appellant's direct appeal, 

### this Courtstated: 

### [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### 2015) (unpublished memorandum) 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 SeniorJudge assigned to the Superior Court.J

### -S45019-19

contention in his 

### motion 

### that he did not 

### enter his plea 

### knowingly,

### voluntarily
or

### intelligently." 

### Id. at 

### *5. Appellant petitionedforallowance ofappeal,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 thispro se appeal. 

### Appellant filed a concise 

### statementof

### 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

## Inre Estate

## ofBoyle, 77 A.3d 674, 676 (Pa. Super. 

### 2013) 

### (with regard

1 

### Commonwealth v. 

### Turner, 544 A.2d 927 (Pa. 

### 1988); 

### Commonwealth v. 

### Finley, 550 A.2d 213 (Pa. Super. 1988) (enbanc).

2The docket reflects 

### thatthe delaywas due to 

### multiple continuances and 

### five "assignments of

### judge." 

## -2J

### -S45019-19

to the preservation ofAppellant's issues on appeal, it is the 

### trial court's order 

### that triggers an 

### appellant's obligation underthe 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." SeeAppellant's Briefat 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 ofthe

### Constitutionor lawsof

### this Commonwealth orthe 

### Constitution or laws 

### ofthe United 

### States; (ii) the facts upon which

### the claim is predicated were unknown to the 

### petitionerand could not have been ascertained by

### theexercise ofdue 

### diligence; or 

### (iii) the 

### rightasserted is a

### constitutional right

### thatwas recognized bythe Supreme Court ofthe United Statesor the Supreme Court of Pennsylvania 

### after the 

### time period provided in 

### this section and has been held by

### thatcourt 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 

### ofthedatethe claim could have been 

## -3J

### -S45019-19 presented." 42 Pa.C.S.A. § 

### 9545(b)(2); see 

### Commonwealth v. 

### GamboaTaylor, 753 A.2d 780, 783 (Pa. 2000).3 Upon review,we agree

### withtheCommonwealth 

### thatAppellant'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 ofsentence becamefinal on February 1, 2016, when the 90 day period

### forAppellantto 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 

### writof 

### certiorari to review a

### judgment in any case ... is 

### timelywhen it is filed 

### withthe Clerkof this Court

### within 90 days 

### after entry ofthe

### 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 

### impactAppellant 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). 

## -4J

### -S45019-19 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

### withoutjurisdiction to considerthe 

### merits ofAppellant's appeal unless he has pled and proved one 

### ofthe 

### threetimeliness 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 toexamine the 

### meritsofthe claims

### Appellant presents on appeal. Order 

### affirmed. Judgment Entered.


### Jseph D. 

### Seletyn, Prothonotary

Date: 

### 8/9/19



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