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

v.
WILLIE C. COOPER,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2548 EDA 2019 Appeal from the PCRA Order Entered August 5, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0808401

- 2002

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J. * MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 28, 2020 Appellant, Willie C. Cooper, appeals pro se from the August 5, 2019 order dismissing his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. We affirm

. The record reveals that on October 1, 2003, a jury found Appellant guilty of first

- degree murder, robbery, and burglary

. 1 At the conclusi on of a penalty phase hearing on October 3, 2003 , the jury returned a verdict sentencing Appellant to death after the jury found that he committed the murder during the perpetration of a felony with no mitigating circumstances. On January 5, 2004, the trial court imposed a sentence of death . The trial court also imposed

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a), 3701(a) , and 3502(a), respectively.J

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a consecutive se ntence of nine t o twenty years’ imprisonment for robbery and
a consecutive sentence of five to twenty years’ imprisonment for burglary.
On June 21 , 2004, the trial court granted Appellant’s post

- sentence motion, in part , and vacated the sentence of death. 2 The trial court, in doing so, ordered a new penalty phase hearing. On July 1, 2004, Appellant filed a capital appeal with our Supreme Court pursuant to 42 Pa.C.S.A. § 9546(d), Pa.R.Crim.P. 910, and Pa.R.A.P. 341(b). On July 21, 2004, the Commonwealth f iled a cross

- appeal with our Supreme Court challenging the June 21, 2004 order vacating Appellant’s sentence of death . On December 28, 2007, our Supreme Court affirmed the trial court’s order that vacat ed Appellant’s sentence of death and order ed a new pe nalty phase hearing. Commonwealth v. Cooper , 941 A.2d 655 (Pa. 2007). On April 30, 20 09, upon the conclusion of the penalty phase hearing in whic h the jury returned a verdict sentencing Appellant to life imprisonment, the trial court sentenced Appellant to life imprisonment for murder. Appellant did not file a subsequent appeal. On July 2, 2009, Appellant filed pro se a PCRA petition raising, inter alia , claims of ineffective assistance of trial counsel, post

- sentence and

_________________ __________ ______ ____ _______ 2 In a June 30, 2004 order, the trial cou rt clarified its June 21, 2004 order, indicating that only the sentence of death was vacated and that the tw o consecutive sentences imposed for Appellant’s robbery and burglary convictions remained in place.J

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direct

- appeal counsel, and c oun sel for his second penalty phase hearing. PCRA counsel was appointed to represent Appellant , and on February 22, 2010, counsel filed a Turner / Finley 3 no - merit letter and a motion to withdraw . On March 26, 2010, the PCRA court notified Appellant of its in tent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant did not file a response. On April 23, 2010, the PCRA court dismissed Appellant’s PCRA petition. Appellant did not file a notice of appeal. On July 19, 2017, Appellant filed pro se the instant PCRA petition, his second, requesting the reinstatement of his appeal rights nunc pro tunc on the grounds, inter alia , his PCRA counsel abandoned him in his first PCRA petition. On March 13, 2019, the PCRA court notified Appellant, pursuant to Rule 907, of its intent to dismiss his PCRA petition on the basis it was untimely and Appellant fai led to invoke an exception to the jurisdictional time

- bar. Appellant did not file a response. The PCRA court subsequently dismissed Appellant’s PCRA pe tition on August 5, 2019. This appeal followed. 4 On appeal, Appellant raises twelve issues, including, inter alia , a claim of ineffective assistance of PCRA counsel based upon PCRA counsel’s filing of

a Turner

/ Finley no - merit letter and allegedly failing to notify Appellant that PCRA counsel did not perfect an appeal of the PCRA court’s dismissal of

_________________ __________ ______ ____ _______ 3 Commonwealth v. Turner , 544 A.2d 927 (Pa. 198 8) and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).

4 The PCRA court did not order Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court , however, filed a Rule 1925(a) opinion on October 13, 2019.J

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Appellant’s first PCRA petition . Appellant’s Brief at 1

- 2. We do not, however, set forth Appellant’s issues , herein , because those issues are not dispositiv e of this appeal. Our Supreme Court instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA petition is untimely, courts lack jurisdiction over the petition. Commonwealth v. Wharton , 886 A.2d 1120, 1124 (Pa. 2005); see also Common wealth v. Callahan , 101 A.3d 118, 121 (Pa. Super. 2014) (holding courts do not have jurisdiction over an untimely PCRA petition). In order to be timely filed, a PCRA petition, including second and subsequent petitions, must be filed within one year of whe n an appellant’s judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). “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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). Our Supreme Court has held that the PCRA’s time restriction is constitutionally sound. Commonwealth v. Cruz , 852 A.2d 287, 292 (Pa. 2004). Here, the trial court senten ced Appellant to life imprisonment on April 30, 2009. Appellant did not file an appeal with this Court. Therefore, Appellant’s judgment of sentence became final on June 1, 2009, 30 days afterJ

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the expiration of the time for seeking an appeal with this Cou rt. 5 See Pa.R.A.P. 903(a) (requiring a notice of appeal to be filed within 30 days after the entry of the order from which the appeal is taken); see also 42 Pa.C.S.A. § 9545(b) (3) (stating that a judgment becomes final at the conclusion of direct review or at the expiration of time for seeking the review). Therefore, Appellant’s instant PCRA petition filed on July 19, 2017, more than 8 years after his judgment of sentence became final, is patently untimely. If a PCRA petition is untimely filed, the juris dictional time

- bar can only be overcome if the petitioner alleges and proves one of the three statutory exceptions, as set forth in 42 Pa.C.S.A. § 9545(b)(1). Commonwealth v. Spotz , 171 A.3d 675, 678 (Pa. 2017). The three narrow statutory exceptions
to t he one

- year time

- bar are as follows: “(1) interference by government officials in the presentation of the claim; (2) newly dis covered facts; and (3) an after

- recognized constitutional right.” Commonwealth v. Brandon , 51 A.3d 231, 233

- 234 (Pa. Super. 2012) , citing 42 Pa.C.S.A. § 9545(b)(1)(i

- iii). A petition invoking an exception to the jurisdictional time

- bar must be filed within 60 days of the date that the claim could have been presented. 6

_________________ __________ ______ ____ _______ 5 We note that the 30 th day following April 30, 2009, was Saturday, May 30, 2009. Consequently, Appellant’s judgment of sentence became final on Monday, June 1, 2009. See 1 Pa.C.S.A. § 1908 (stating that when the last day of any period of time referred to in a statute falls on a Saturday or Sunday, that day shall be omitted from the computation).

6 We note that effective December 24, 2018, the period of time in which to file a petition invoking one of th e three ex ceptions was extended from 60 daysJ

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42 Pa.C.S.A. § 9545(b)(2) (prior version) . If the petitioner f ails to invoke a valid exception to the PCRA time

- bar, courts are without jurisdiction to review the petition or provide relief. Spotz , 171 A.3d at 676. A review of Appellant’s PCRA petition demonstrates that Appellant is attempting to assert the newly d iscovered fact s exception to the jurisdictional
time

- bar. PCRA Petition, 7/19/17, at 1, 3. Our Supreme Court held that when considering a claim seeking to invoke the newly discovered fact s exception, “the petitioner must establish only that (1) the facts upon which the claim was predicated were unknown and (2) they could not have been ascertained by the exercise of due diligence.” Commonwealth v. Cox , 146 A.3d 221 , 227 (Pa. 2016) (citation omitted). “Due diligence does not require perfect vigilance and punctilious care, but merely a showing the party [] put forth reasonable effort to obtain the information upon which a claim is based.” Id

. at 230 (citation and original quotation marks omi tted). The petitioner must offer “evidence that he exercised due diligence in obtaining facts upon which his claim was based.” Id. at 227, citing Commonwealth v. Breakiron , 781 A.2d 94, 98 (Pa. 2001). “[T]he presumption that information which is of publ ic record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners.” Commonwealth v. Burton ,

_________________ __________ ______ ____ _______ to one year. 42 Pa.C.S.A. § 9545(b)(2) (current version) . This amendment applies to claims arising one year prior to the effective dat e of the amendment, that is to s ay arising on December 24, 2017, or later. Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Because Appellant filed his instant PCRA petition on July 19, 2017, this amendment does not apply.J

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158 A.3d 618, 638 (Pa. 2017) (emphasis omitted ). Thus, “ i n determining whether a petitioner qualifies f or the [newly discovered facts] exception to the PCRA's time requirements pursuant to subsection 9545(b)(1)(ii), the PCRA court must first determine whether ‘ the facts upon which the claim is predicated were unknown to the petitioner. ’ ” Id. Here, Appellan t argues that on May 8, 2017, he learned that there was no current appeal pending with this Court pertaining to his first PCRA petition. PCRA Petition, 7/19/17, at “Supplemental Page 3.” Appellant asserts that he understood that the court

- appointed couns el in his first PCRA petition filed a
Turner / Finley no - merit letter and a motion to withdraw and that t he PCRA
court subsequently granted cou nsel permission to withdraw from representation of Appellant. Id. at 3. Appellant contends, however, that he

was under the belief that his court

- appointed counsel was securing another lawyer from her firm to file a notice of appeal on behalf of Appellant. Id. Appellant admits that he received a letter from his court

- appointed counsel expl aining that Appellant had 3 0 days in which to file a notice of appeal from the PCRA court ’s dismissal of his first PCRA petition. Id. The PCRA court, in dismissing Appellant’s instant PCRA petition, stated, This second or subsequent petition was untimely filed and does not plead an d prove any exception to the PCRA’s time

- bar. In an attempt to establish the newly

- discovered fact exception, § 9545(b)(1)(ii), [Appellant] claimed that in 2017[,] he discovered that his PCRA counsel abandoned him by failing to appeal the PCRA court’s 201 0 order denying relief. [Appellant] acknowledged, however, that his attorney was permitted to withdraw after filing a Turner/Finley no - merit letter. [Appellant] also acknowledged that his attorney specificall y advised him thatJ

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he had [30] days to appeal. Thus, [Appellant] failed to substantiate the purported newly

- discovered fact that counsel abandoned him

. [FN3]
[FN3] Even if counsel was obligated to preserve [Appellant’s] appeal, [Appellant] failed to demonstrate that the status of his appeal previously was unascertainable with the exercise of due diligence. Additionally, [Appellant] failed to file his instant petition within [60] days of discovering the purported abandonment. Specifically, [Appellant] averred that he discovered the fact that an appeal [was not] perfected on May 8, 2017. [Appellant ] filed the instant PCR A petition on July 19, 2017, out side the [60]

- day window[.] PCRA Court Opinion, 10/23/19, at 1 (record citations and footnote 2 omitted (footnote 1 does not appear in the opinion)).
A r eview of t he record demonstrates that Appellant admi t t ed recei pt of a letter from his court

- appointed counsel inform ing him that he had 30 days to appeal the dismissal of his first PCRA petition. 7 Appellant furthe r admi t ted he was aware that the PCRA cour t granted his court

- appointed counsel permission to withdraw from represent ation

. 8 Although Appellant claimed he believed his court

- appointed counsel was arranging for another attorney from her firm to represent Appellant on his appeal , Appellant failed t o plead or prove his PCRA counsel informed him as such

. 9 Appellant simply did not file

_________________ __________ ______ ____ _______ 7 A copy of the correspondence from Appellant’s court

- appointed counsel is not part of the certified record.

8 A copy of the PCRA court’s order granting counsel’s petition to withdraw is not part of the certified record.

9 The letter of appointment appointing Appellant’s PCRA counsel specifically stated that the appointment was “not transferable”.J

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an appeal , pro se or otherwise, of the dismissal of his first PCRA petition. Appellan t failed to demonstrate that the newly discovered fact s , namely that Appellant’s PCRA counsel no longer represented Appellant and that there was no pending appeal of the dismissal of his first PCRA petition, were not previously known by Appellant. 10 Therefore, the PCRA court properly dismissed Appellant ’s PCRA petition as untimely and without exception. Consequently, the PCRA court lacked jurisdiction to review Appellant’s PCRA petition, and we may not review the petition on appeal

. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/28/20

_________________ __________ ______ ____ _______ 10 Moreover, App ellant failed to plead and prove that the newly discovered facts could not have been discovered through the exercise of due diligence. Much like Appellant was able to file the instant PCRA petition, Appellant could have exercised due diligence by contacti ng this Court in an attempt to ascertain the status of an appeal or by contacting his prior PCRA counsel.