J-S58014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN JAMES SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 299 WDA 2019

Appeal from the PCRA Order Entered January 28, 2019

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0001379-2015

BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 20, 2019

Brian James Smith appeals, pro se, from the order dismissing his second 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. 

§§ 9541-9546. Smith’s petition is facially untimely, and he has failed to plead 

and prove any of the statutory exceptions to the PCRA time-bar. Therefore, 

the PCRA court rightfully dismissed the petition. Accordingly, we affirm. 

In April of 20151, Smith was caught on surveillance camera at a

McDonald’s restaurant passing a note to the cashier in which he demanded 

money from the register and threatened to stab the cashier with a knife, which 

he was carrying.

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1 Smith was on parole at the time of the instant offense for a separate offense 

in South Carolina. 
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On September 1, 2015, Smith plead guilty to one count each of criminal 

attempt of robbery, terroristic threats, and possessing instruments of crime

(“PIC”). On October 13, 2015, a hearing was held at which Smith was 

scheduled to be sentenced. However, prior to sentencing Smith filed a motion 

to withdraw his guilty plea. Due to the pending motion, sentencing was 

deferred and a pre-sentence investigation (“PSI”) report was ordered.

On November 13, 2015, the court denied Smith’s motion to withdraw 

guilty plea. Smith was sentenced to sixty-nine to one-hundred and fourteen 

month’s incarceration for criminal attempt of robbery, thirty to sixty months’ 

incarceration for terroristic threats, and twenty-one to sixty month’s 

incarceration for PIC. All sentences were ordered to run concurrently. No postsentence motions or direct appeal was filed. 

On October 24, 2016, Smith filed, pro se, his first PCRA petition alleging 

his trial counsel was ineffective for failing to investigate his case and 

misleading him into taking a plea, and his sentence was excessive considering 

nothing was taken and no one was hurt. Counsel was appointed who 

subsequently filed a petition to withdraw along with a no-merit letter pursuant 

to Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).2 Based on 

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2 The record reflects counsel was appointed to represent Smith during the 

pendency of his first PCRA proceedings, and clearly attempted to withdraw 

from that representation. However, there is no indication in the record before 

us that defense counsel was ever formally permitted to withdraw. 

Nevertheless, we find this issue moot. The right to representation for a first 
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the allegations made by counsel in the no-merit letter, the PCRA court issued 

a notice of intent to dismiss the petition pursuant to Pa.R.A.P. 907 and 

subsequently dismissed the petition. 

On September 6, 2018,3 Smith filed a “Motion to Modify and Reduce 

Sentence”, contending the court erred by deviating from the standard 

sentencing range and failing to provide adequate reasons for the deviation on 

the record. The court interpreted this motion as a second PCRA petition. See 

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002) 

(“[T]he PCRA provides the sole means for obtaining collateral review, and ...

any petition filed after the judgment of sentence becomes final will be treated 

as a PCRA petition”).4 The PCRA court issued notice of its intent to dismiss the 

petition without a hearing pursuant to Pa.R.Crim.P. 907 and subsequently 

dismissed the petition, finding it untimely and finding Smith had failed to raise 

any meritorious claims. This timely appeal followed. 

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PCRA petition extends only throughout the appeals process. See Pa.R.Crim.P. 

904(F)(2). Since no appeal was taken from the order dismissing Smith’s first 

PCRA petition, the order became final as a matter of law on March 6, 2018. 

See Pa.R.A.P. § 903(a). Therefore, counsel’s representation ceased upon 

termination of the appeal process. 

3 Smith’s petition was time-stamped and docketed on January 28, 2019, after

the PCRA court issued its Rule 907 Notice. The PCRA court determined that 

the petition was filed on September 6, 2018, pursuant to the prisoner mailbox 

rule. See Rule 907 Notice, 12/4/2018, at 2 n.1.

4 On appeal, Smith does not challenge the court’s determination that his 

motion was a petition under the PCRA.
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Prior to reaching the merits of Smith’s claims on appeal, we must first 

consider the timeliness of his PCRA petition. See Commonwealth v. Miller, 

102 A.3d 988, 992 (Pa. Super. 2014).

A PCRA petition, including a second or subsequent one, must be 

filed within one year of the date the petitioner’s judgment of 

sentence becomes final, unless he pleads and proves one of the 

three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A 

judgment becomes final at the conclusion of direct review by this 

Court or the United States Supreme Court, or at the expiration of 

the time for seeking such review. The PCRA’s timeliness 

requirements are jurisdictional; therefore, a court may not 

address the merits of the issues raised if the petition was not 

timely filed. The timeliness requirements apply to all PCRA 

petitions, regardless of the nature of the individual claims raised 

therein. The PCRA squarely places upon the petitioner the burden 

of proving an untimely petition fits within one of the three 

exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations 

and footnote omitted). 

Since Smith did not file a post-sentence motion or a direct appeal, his 

judgment of sentence became final on December 13, 2015, when his time for 

seeking direct review with this Court expired. See 42 Pa.C.S.A. § 9545(b)(3)

(judgment of sentence becomes final “at the conclusion of direct review ... or 

at the expiration of time for seeking the review”). The instant petition – filed 

almost three years later – is patently untimely. Thus, the PCRA court lacked 

jurisdiction to review Smith’s petition unless he was able to successfully plead 

and prove one of the statutory exceptions to the PCRA’s time-bar. See 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

The PCRA provides three exceptions to its time bar: 
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(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). Exceptions to the time-bar must be pled in 

the petition, and may not be raised for the first time on appeal. See 

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are 

waived and cannot be raised for the first time on appeal). Further, 

Although this Court is willing to construe liberally materials filed 

by a pro se litigant, pro se status generally confers no special 

benefit upon an appellant. Accordingly, a pro se litigant must 

comply with the procedural rules set forth in the Pennsylvania 

Rules of the Court. This Court may quash or dismiss an appeal if 

an appellant fails to conform with the requirements set forth in 

the Pennsylvania Rules of Appellate Procedure. 

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003)

(citations omitted). 

Even liberally construed, Smith has failed to plead and prove that any 

of his claims constitute a valid exception to the PCRA time-bar. In fact, Smith 

failed to make any attempt to plead an exception. See Motion to Modify and 
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Reduce Sentence, filed 9/6/2018. Accordingly, we affirm the PCRA court’s 

order denying Smith’s petition as untimely. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/20/2019