J-S23044-18

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TELLY MONTEZ THORPE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3420 EDA 2017

Appeal from the PCRA Order September 21, 2017

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0000104-2014

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 04, 2018

Appellant, Telly Montez Thorpe, appeals from the order entered in the 

Court of Common Pleas of Delaware County dismissing his first petition filed 

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, as 

untimely. Herein, Appellant contends his patently untimely petition qualified 

for merits review under an exception to the PCRA’s timeliness requirement. 

We affirm.

The PCRA aptly summarizes the pertinent facts and procedural history 

of the case, as follows:

Appellant entered into a negotiated guilty plea on September 23, 

2014, to two counts of robbery, a felony of the first degree. 

Pursuant to the plea, he was sentenced to an aggregate sentence 

of 60 to 120 months of incarceration, with credit for time served 

from 12/6/13 to 9/23/14. Appellant did not file an appeal.

. . .
J-S23044-18

- 2 -

[Appellant] claims that in the spring of 2016, he requested 

through his unit counselor, Ms. Krug, to find out when he would 

be paroled because his 2 1⁄2 years were served on or about June 

6, 2016. [It was then, Appellant says, he learned for the first time 

that he was not eligible for parole after 2 1⁄2 years’ incarceration 

under his plea agreement.]

On March 24, 2016, Appellant filed a petition pursuant to the 

[PCRA] . . . . PCRA counsel was appointed and counsel filed an 

amended PCRA petition on January 4, 2017. Following a hearing 

on this motion, [the PCRA] court ultimately concluded that the 

Appellant was not entitled to relief and denied his motion by Order 

on September 21, 2017.

PCRA Court Opinion, filed 12/28/17, at 1, 5. 

This timely appeal followed. Appellant presents the following questions 

for our review.

I. WHETHER THE PCRA COURT ERRED IN DENYING 

APPELLANT’S PCRA PETITION WHERE THE RECORD 

CLEARLY SHOWS IT WAS TIMELY FILED PURSUANT TO 

42 PA.C.S. [§§] 9545(b)(1)(ii) AND (b)(2) BECAUSE IT 

WAS FILED WITHIN 60 DAYS OF THE TIME THAT 

APPELLANT LEARNED THAT HE WOULD NOT BE PAROLED 

AFTER 2 1⁄2 YEARS AND THIS FACT COULD NOT HAVE 

BEEN ASCERTAINED BY THE EXERCISE OF DUE 

DILIGENCE.

II. WHETHER THE PCRA COURT ERRED IN DENYING 

APPELLANT’S PCRA PETITION WHERE THE RECORD 

CLEARLY SHOWED THAT COUNSEL WAS INEFFECTIVE 

FOR INDUCING APPELLANT TO ENTER A GUILTY PLEA 

BASED ON COUNSEL’S ERRONEOUS ADVICE THAT 

APPELLANT WOULD BE PAROLED AFTER 2 1⁄2 YEARS IF 

HE ENTERED A NEGOTIATED GUILTY PLEA TO [A] NONMANDATORY SENTENCE OF 5 TO 10 YEARS, AND 

APPELLANT WAS PREJUDICED BY COUNSEL’S 

INEFFECTIVENESS? 

Appellant’s brief, at 4.
J-S23044-18

- 3 -

This Court's standard of review regarding an order 

dismissing a PCRA petition is whether the determination of the 

PCRA court is supported by evidence of record and is free of legal 

error. Commonwealth v. Burkett, 5 A.3d 1260, 1267 

(Pa.Super. 2010) (citations omitted). “In evaluating a PCRA 

court's decision, our scope of review is limited to the findings of 

the PCRA court and the evidence of record, viewed in the light 

most favorable to the prevailing party at the trial level.” Id.

Commonwealth v. Brandon, 51 A.3d 231, 233 (Pa.Super. 2012).

We first examine whether Appellant timely filed the petition under 

review, as this question implicates our jurisdiction. Under the PCRA, all 

petitions must be filed within one year of the date that the petitioner's 

judgment became final, unless one of three statutory exceptions applies. 42 

Pa.C.S. § 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006). For purposes of the PCRA, a judgment becomes final at the conclusion 

of direct review. 42 Pa.C.S. § 9545(b)(3). “The PCRA's time restrictions are 

jurisdictional in nature.” Chester, 895 A.2d at 522. Pennsylvania law makes 

clear that no court has jurisdiction to hear an untimely PCRA petition. See 

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).

Instantly, Appellant was sentenced on September 23, 2014. Because 

he did not file a post-sentence motion or direct appeal, his judgment of 

sentence became final on October 23, 2014. See 42 Pa.C.S. § 9545(b)(3); 

Pa.R.A.P. 903. Thus, Appellant had until October 23, 2015, to file timely a 

PCRA petition. He did not do so, as he filed the present petition on March 24, 

2016.
J-S23044-18

- 4 -

Accordingly, Appellant had to plead and prove that his petition met one 

of the following exceptions to the timeliness requirement:

(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. § 9545(b)(1). A PCRA petition invoking one of these statutory 

exceptions “must be filed within sixty days of the date the claim could first 

have been presented.” 42 Pa.C.S. § 9545(b)(2). Commonwealth v. 

Hernandez, 79 A.3d 649, 651 (Pa.Super. 2013).

Appellant alleges he timely filed his petition pursuant to 42 Pa.C.S. § 

9545(b)(1)(ii). As stated above, a petitioner satisfies this section by alleging 

and proving that the factual basis of his claim was previously unknown to him 

and that he could not have discovered the facts earlier through the exercise 

of due diligence. See 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. 

Huddleston, 55 A.3d 1217, 1220 (Pa.Super. 2012). “Due diligence demands 

that the petitioner take reasonable steps to protect his own interests.” 

Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010). As 

such, a petitioner must provide reasons for why, through the exercise of due 
J-S23044-18

- 5 -

diligence, he did not discover the facts earlier. Id. “This rule is strictly 

enforced.” Id.

Upon review, we conclude Appellant has failed to meet his burden to 

establish that the exception at section 9545(b)(1)(ii) applies to his case. 

Appellant alleges he is entitled to PCRA relief because he entered an 

unknowing plea, induced by counsel’s failure to explain that the “nonmandatory” five to ten year sentence to which he agreed in exchange for his 

plea did not mean he would be eligible for parole sooner than the five-year 

minimum sentence imposed. To the extent, therefore, that Appellant offers 

as his “newly discovered fact” plea counsel’s alleged ineffective failure to 

advise him properly of parole eligibility, his position is unavailing. See 

Commonwealth v. Bennett, 930 A. 2d 1264 (Pa. 2007) (holding ineffective 

assistance claim may not be relied upon to circumvent PCRA timeliness 

requirement unless counsel effectively abandoned client during 

representation); Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa.Super.

2008) (“Our Supreme Court has made clear that the section 9545(b)(1)(ii) 

exception will not apply to alleged ineffective assistance of counsel claims, 

even if the claims were not knowable until advised of their existence by 

present counsel.”).

Given the above, we conclude Appellant has failed to meet his burden 

to plead and prove that his patently untimely petition should be treated as 

timely pursuant to section 9545(b)(1)(ii). Accordingly, the PCRA court 

committed no error in dismissing Appellant’s petition as untimely filed. 
J-S23044-18

- 6 -

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/4/18