J

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

COMMONWEALTH OF PENNSYLVANIA

v.

JARROD R. MILLER,

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

PENNSYLVANIA

No. 1845 MDA 2018 Appeal from the PCRA Order Entered October 23, 2018 in the Court of Common Pleas of York County Criminal Division at No(s): CP

- 67

- CR

- 0004531

- 2016
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2019 Jarrod R. Miller (“Miller”) appeals, pro se , from the denial of his second Petition filed pursuant to the Post Conviction Relief Act (“PCRA”)

. 1 We affirm.
The PCRA court provided the relevant factual and procedural history as

follows:
On Apri l 11, 2016, at approximately 5: 49 p.m., [Miller] crashed his v ehicle into another vehicle [,] killing one of its occupants, Sandra Yvonne H oward. At the scene of the crash, [Miller] failed a field sobriety test. A dditionally, a portable breath test indicated the presence of alcohol on [Miller’ s ] breath. Upon waiving his rights under Miranda [ 2 ] , [Miller] a dmitted to the police that he was incapable of safely operating his vehicle because he had been drink ing alcohol prior to the crash.
[Miller] was charged [] with: ( 1) h omicide by v ehicle w hile
u nder the i nfluence of a lcohol or c ontrolled substance ; (2) driving under the influence of alcohol or controlled s ubstance [

— general impairment] ; (3) driving under the influence of alcohol or

_________________ __________ ______ ____ _______

1 See 42 Pa.C.S.A. §§ 9541

- 95 46.

2 See Miranda v. Arizona , 384 U.S. 436 (1966).J

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controlled substance [

— controlled substances] ; (4) driving under the influence of alcohol or controlled substance [

— controlled substances] ; ( 5) r ecklessly e ndangering a nother p erson ; (6) h omicide by v ehicle ; ( 7) d riving on r oadways laned for traffic; ( 8) driving v ehicl e at s afe s peed; (9) c areless driving; (10) c areless d riving

— unintentional death; and (11) r eckless driving

. [ 3 ]
Kathryn Bellfy, Esquire, represented [Miller] during trial proceedings. Ultimately, Attorney Bellfy assisted [Miller] with negotiating a plea [] for Counts 1, 4, 5, 6, and 9. On December 30, 2016, the t rial c ourt accepted [Miller’s] plea and sentenced him as follows: five [] to ten [] years [] [in prison] in a State Corr ectional Institution for Count 1; one [] to two [] years [in prison] for Co unt 5, which runs concur rently with Count 1; and two [] years and nine months to seven [] years [in prison] for Count 6, which runs consecutively to the sentence imposed for Count 1. [Miller’s] aggregated sentence is seven [] years and nine months to seve nteen [] years [in prison]. Counts 4 and 9 merge for sentencing purposes. The Commonwealth nolle prossed all remaining counts.
[Miller ] declined to file a petition seeking to withdraw his plea and a direct appeal to the Superior Court. On April 28, 201 7, [Miller] , pro se , timely filed his first [P] etition pursuant to the [PCRA] , [] alleging ineffective assistance of counsel. On June 7, 2017, [the c] ourt granted [Miller] in forma pauperis status and appointed Christopher D. Moore, Esquire, to represent [Miller] in PCRA proceedings. On July 21, 201 7, Attorney Moore filed a Motion requesting an evidentiary hearing and an extension of time within which to amend [Miller’s] pro se filing. On August 28, 2017, [the c]ourt scheduled a PCRA h earing to convene o n November 21, 2017. Attorney Moore did not appear on November 21, 2017, due to a scheduling conflict and the PCRA h earing was subsequently moved to November 28, 2017. The PCRA c ourt convened a hearing on November 28, 2017. ... [Miller],
r epresented by Att orney Moore, appeared in person. [Miller] conferred with his counsel prior to the start of the hearing and after consultation with counsel, [Miller] moved to withdraw his PCRA P etition and the hearing was cancelled.

_________________ __________ ______ ____ _______

3 See 75 Pa.C.S.A. §§ 3735(a), 380 2(a)(1), 3802(d)(2), 3802(d)(3); 18 Pa.C.S.A. § 2705; 75 Pa.C.S.A. §§ 3732, 3309(1), 3361, 3714(a), 3 714(b), 3736.J

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- On September 10, 2018, [Miller] , pro se , filed [the instant] PCRA P etition [,] alleging plea counsel ' s ineffectiveness for endorsing [Miller’s] p lea to charges that trigger double jeopardy and the imposition of an illegal sentence. Further, [Miller]
r equested in forma pauperis status and the appointment of counsel. PCRA Court Opinion, 10/23/18 , at 15

- 18 ( emphasis added; unnecessary capitalization omitted) (footnote s omitted )

. 4 On October 23, 2018, the PCRA court denied Miller’s second Petition as being untimely filed. Mille r filed a
timely Notice of Appeal on October 29, 2018. On appeal, Miller raises the f ollowing claim for our review:
The [PCRA court] was in error for its denial of [Miller’s] PCRA [Petition] without hold [ sic ] a hearing at the least to address the issues. The court use [ sic ] a rubber stamp reason for [its] decision. Time

- Barred [ sic ]. Not all issues [,] as this court is
aware [,] a re time

- barred and the merits of the argument need to be entertained in order that justice is fair and equal.
Brief fo r Appellant at 4.
In reviewing an order denying a PCRA petition, t his Court ' s standard of review is limited to “whether the [PCRA] court’s legal conclusions are correct and whether its factual findings are clearly erroneous.” Commonwealth v.

Edwards , 177 A.3d 963 , 970 (Pa. Super. 2018). Section 9545 of the PCRA expressly states that a PCRA petition, “including a second or subsequent petition, shall be filed within one year of

_________________ __________ ______ ____ _______

4 We note that Miller was appointed counsel for his first PCRA Petition. We further note that although Miller’s first Petition was withdrawn, the instant Petition does not qualify as an amended first petition entitling Mille r to the appointment of counsel. See Commonwealth v. Rienzi , 827 A.2d 369 (Pa. 2003) (providing that a second , untimely PCRA petition should not be treated as an amendment to a timely, but withdrawn, first petition).J

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the date the judgment becomes final.” 42 Pa.C.S.A. § 9545. A judgment of

senten ce becomes final at the conclusion of direct review, including discretionary review, or at the expiration of time for seeking the review.

Id. at § 9545(b)(3). “Our courts have strictly interpreted this requirement as
creating a jurisdictional deadline .” Commonwealth v. Jackson , 30 A.3d 516, 522 (Pa. Super. 2011). A court may not address the merits of the issues raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).

Miller was sentenced on December 3 0, 2016 and did not file a direct
appeal

. Accordingly, Miller’s judgment of sentence became final on January

29 , 2017. See 42 Pa.C.S.A. § 9545(b)(3). Under the PCRA , Miller had until
January 29, 2018 , to file a timely PCRA petition. Miller file d the instant Petition

on September 10, 2018 . Thus , Miller’s Petition is facially untimely

. Nonetheless, Pennsylvania courts may consider untimely petitions if the
petitioner can explicitly plead and prove one of three exceptions set forth at

42 Pa.C.S.A. § 9545(b)(1)(i

- iii). A petition invoking such an exception must be filed within 60 days of the date the claim could have been presented. Id.
§ 9545(b)(2). Additionally, a claim that an exception is available must be

made in the petition and cannot be ra ised for the first time on appeal. See

Pa.R.A.P. 302 (stating that “[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal

. ”).J

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On appeal, Miller attempts to invoke two exceptions to the PCRA’s time

bar. 5 First , Miller attempts to invoke Section 9545(b)(1)(i), which provides an exception where the “failure to raise the claim previously was the result of interference by government officials....” See Brief for Appellant at 7. Miller fails to specify any sort of interference committed by a government official
and, instead , asserts that his plea deal was illegal because the crimes should have merged for sentencing

. See i d.
Second, Miller attempts to invoke Section 9545(b)( 1)(ii), which provides an exception where “the facts upon which the claim is predicated were
unknown to the petitioner and could not have been ascertained by the exercise of reasonable due diligence....” See Brief for Appellant at 8. M iller claims that

his Petition would have been timely filed if it were not for his assumption that

the Commonwealth’s witnesses were honest in their testimony

. Id. According

to Miller , on an unspecified date, he learned that the Commonwealth’s

witnesses perjured themselves by accepting a deal with the Commonwealth , yet denied t he existence of a deal at the sentencing hearing. Id. Therefore,

_________________ __________ ______ ____ _______

5 We note that Miller’s Brief also inc ludes arguments that he was “illegally sentenced twice for a single act and in part [ sic ] causing double jeopardy to be forced upon him” and that his plea counsel was “ineffective for not informing [him] of the illegal offer by the state and not informing the court as well.” Brief for Appellant at 9

- 11. These arguments were not included in Miller’s Statement of Questions and, therefore, are waived. See Pa.R.A.P. 2116(a) (stating that “no question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”); see also id. at 2116(b) ( requiring that challenges to the discretionary asepcts of a sentence shall be included in the statement of questions and that a “[f] ailure to [do so] shall constitute a waiver of all issues relating to the discretionary aspects of sentence .”).J

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Miller argues , Section 9545(b)(1)(ii) is satisfied, as the witnesses’ perjury constituted an unknown fact which could have only been d iscovered by a distrust of the Commonwealth’s witnesses, and an assumption of dishonesty
is not required in the exercise of due diligence. Id. Before addressing the merits of Miller’s timeliness arguments , we draw

attention to the fact that he did not r aise any of the exceptions to the PCRA’s

time

- bar before the PCRA court

. See PCRA Court Supplemental Opinion,
12/3/18, at 2 (stating that Miller “declined to raise the time[

- ]bar exception

before the PCRA court

. Because these issues are raised for the fi rst time on appeal, we conclude that Miller is precluded from invoking either exception.

See Pa.R.A.P. 302(a), supra

. Consequently , Miller’s Petition was properly denied for being untimely filed.

E ven if Miller were not precluded from invoking an exception to the

PCRA’s time

- bar , Miller fails to establish either exception

. First, Miller failed to develop any meaningful argument to substantiate, or even identify, any alleged interference by a government official

. See Commonwealth v.

Lambert , 765 A .2d 306, 353 (Pa. Super. 2000) (refusing to consider the

merits of issues summarily characterized as valid claims and which are not properly developed or supported in a brief ). Second , Miller failed to recognize
that the exception at Section 9545(b)(1)(ii ) only pertains to newly

- discovered

facts upon which the underlying claim is predicated . The merits of Miller’s

Petition relate to ineffective assistance of plea counsel and the legality of his

sentence. See Motion for Post Convict ion Collateral Relief, 9/10/18J

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(unnumbered). Neither of these is affected by the existence of a n alleged deal

between the Commonwealth and its witnesses. Accordingly, Mi ller has failed to establish an exception to the PCRA’s timeliness requirements.

Base d upon the foregoing , we find that Miller’ s Petition was untimely

filed and we affirm the Order of the PCRA court

. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/16/2019