J-A27015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL J. WARE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1256 EDA 2019

Appeal from the PCRA Order Entered April 1, 2019

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

No(s): CP-64-CR-0000029-2015

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: FILED JANUARY 31, 2020

Michael J. Ware appeals from the April 1, 2019 order dismissing as 

untimely his second petition under the Pennsylvania Post-Conviction Relief Act 

(“PCRA”). We affirm.

This Court aptly summarized the underlying factual history of this case 

in an unpublished memorandum affirming Appellant’s judgment of sentence:

On August 30, 2014, Appellant allowed his unlicensed 15-year-old 

daughter (“J.W.”) to drive his vehicle with another minor, R.A.K. 

J.W. and R.A.K. subsequently picked up four teenage boys as 

passengers. J.W. lost control of the vehicle on a turn and crashed. 

Three of the teenage boys died as a result of the accident.

[Appellant] stood at the scene of [the] vehicular accident that left 

three teenage boys dead and told police that he did not know his 

underage daughter took his vehicle. Despite his daughter taking 

full responsibility for the accident, Appellant did not confess to 

investigating officers that he had given his underage daughter 

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* Retired Senior Judge assigned to the Superior Court.
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permission to drive his vehicle. It was not until two and a half 

months after the accident when police learned the truth [from a 

written statement provided by J.W.].

. . . .

On July 9, 2015, Appellant pled guilty to [three counts of 

involuntary manslaughter and three counts of recklessly 

endangering another person (“REAP”)] in exchange for seven 

additional charges against him being nolle prossed.

. . . .

On August 20, 2015, after reviewing Appellant’s pre-sentence 

investigation (“PSI”) report, a letter from Appellant, letters from 

Appellant’s friends and family, and letters from the victims’ 

families, the trial court sentenced Appellant to 20-40 months’ 

incarceration for each of his involuntary manslaughter convictions 

and 6-24 months’ incarceration for each of his REAP convictions. 

The court imposed the sentences consecutively, which resulted in 

an aggregate sentence of 78-192 months’ (61⁄2-16 years’) 

incarceration.

Commonwealth v. Ware, 154 A.3d 850 (Pa.Super. 2016) (unpublished 

memorandum at 1-3). 

Appellant filed a direct appeal from his judgment of sentence, which this 

Court affirmed on July 11, 2016. Appellant did not appeal to the Pennsylvania 

Supreme Court. The PCRA court denied Appellant’s first PCRA petition on July 

12, 2017, after his first PCRA counsel withdrew representation under 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth 

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Appellant did not 

appeal.

Appellant filed the instant petition on October 30, 2018, arguing in 

pertinent part that his sentence is illegal. Specifically, Appellant asserts that 
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he was entitled to a Recidivism Risk Reduction Incentive (“RRRI”) sentence 

pursuant to 61 Pa.C.S. § 4505. The PCRA court advised Appellant of its intent 

to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907, 

and Appellant declined to file a response. On April 1, 2019, the PCRA court 

dismissed Appellant’s PCRA petition as untimely. Appellant filed a timely 

notice of appeal, and both Appellant and the PCRA complied with the 

requirements of Pa.R.A.P. 1925. The matter is now ripe for our review.

In pertinent part, Appellant’s claim is that his sentence is illegal because 

he was allegedly eligible for a RRRI sentence, but neither his counsel nor the 

sentencing court realized this oversight at the time of sentencing. 

Accordingly, Appellant requests that he be resentenced consistent with the 

RRRI statutory scheme. See Appellant’s brief at 9-10.

Our standard and scope of review in the context of a petition for relief 

pursuant to the PCRA is well-established under existing precedent. Our 

standard of review is “limited to determining whether the PCRA court’s findings 

are supported by the record and without legal error.” Commonwealth v. 

Edmiston, 65 A.3d 339, 345 (Pa. 2013). Furthermore, “[o]ur 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 PCRA court level.” 

Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012). We apply a de 

novo standard of review with regard to the PCRA court’s legal conclusions. 

See Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
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However, before we may address the underlying merits of Appellant’s 

PCRA petition, we must assess whether the petition is timely, or subject to 

one of the exceptions to the timeliness requirements under the PCRA. See 

Commonwealth v. Walters, 135 A.3d 589, 591-92 (Pa.Super. 2016) (“[T]he 

PCRA’s timeliness requirements are jurisdictional in nature and must be 

strictly construed; courts may not address the merits of the issues raised in a 

petition if it is not timely filed.”). In pertinent part, the PCRA provides as 

follows regarding timeliness:

(b) Time for filing petition.—

(1) Any petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the 

judgment becomes final, unless the petition alleges and the 

petitioner proves that:

. . . . 

(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

. . . .

(3) For purposes of this subchapter, 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.

42 Pa.C.S. § 9545(b). In reviewing these statutory provisions, it is also 

important to note that “there is no generalized equitable exception to the 

jurisdictional one-year time bar pertaining to post-conviction petitions.” 

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).
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Appellant’s judgment of sentence became final for the purposes of PCRA 

timeliness on August 10, 2016, when Appellant’s time in which to seek review 

before the Pennsylvania Supreme Court in his direct appeal expired. See

Pa.R.A.P. 903(a) (appeals must be taken within 30 days from the entry of the 

appealable order); see also 42 Pa.C.S. § 9545(b)(3). Thus, to be timely, the 

instant PCRA petition would have to have been filed on or before August 10, 

2017. However, Appellant’s PCRA petition, filed on October 30, 2018, is 

facially untimely by more than one year. 

Appellant claims that the exception at § 9545(b)(1)(ii) respecting newly 

discovered material facts should apply in this case due to an unsupported

allegation that Appellant’s first PCRA counsel “effectively abandoned him 

during the [first] PCRA proceeding by wrongly conceding” that Appellant was 

not RRRI eligible. See Appellant’s brief at 23-24; see also Letter from PCRA 

Counsel, 4/18/17, at 3 (“The defendant is not RRRI eligible.”). We disagree.

The timeliness exception set forth at § 9545(b)(1)(ii) has two operative 

components, which must both be alleged and proved in order to establish this 

exception to PCRA timeliness. See Commonwealth v. Brown, 111 A.3d 

171, 176 (Pa.Super. 2015). Specifically, the petitioner must establish that: 

(1) the facts upon which the claim was predicated were unknown; and (2) the 

facts could not have been ascertained by the exercise of due diligence. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). In this 

context, “due diligence demands that the petitioner take reasonable steps to 
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protect his own interests and explain why he could not have learned the new 

facts earlier with the exercise of due diligence.” Commonwealth v. Diggs, 

___ A.3d ___, 2019 WL 5090973, at 3 (Pa.Super. 2019). Furthermore, a 

PCRA petition invoking one of these exceptions must be filed within sixty days

of the date the claims could have been presented. 42 Pa.C.S. § 9545(b)(2).

1

Appellant has attempted to cast PCRA counsel’s statement regarding his 

RRRI eligibility as the functional equivalent of abandonment by counsel, which

our Supreme Court has held is applicable in the context of § 9545(b)(1)(ii). 

See Bennett, supra at 1274. Given that Appellant’s first PCRA counsel 

followed the correct procedure to withdraw her representation of Appellant 

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1

 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) was amended to provide 

that any PCRA petition invoking a timeliness exception must be filed within 

one year of the date the claim first could have been presented. In relevant 

part, the amendment states that “it shall apply to claims arising one year 

before the effective date of this section or thereafter.” See 2018 Pa. Legis. 

Serv. Act 2018-146 (S.B. 915), at § 3. Based upon the limited factual history 

presented by Appellant, it is somewhat unclear which version of this statute 

should be applied to Appellant’s PCRA petition. The letter from Appellant’s

PCRA counsel disclaiming his RRRI eligibility was attached to her April 18, 

2017 petition to withdraw. Although the certified record is silent as to when 

Appellant received any documentation regarding the filings from PCRA 

counsel, the record before us indicates that Appellant received a copy of the 

PCRA court’s order dismissing his petition via certified mail on July 18, 2017. 

See Order, 7/12/17, at 1. In pertinent part, Appellant makes no argument 

regarding when he received notice of this allegedly “new” information. Based 

on the record before us, Appellant’s instant claim arose—at the latest—on July 

18, 2017, which does not fall within the one-year lookback period established 

by the General Assembly. Therefore, the prior version of § 9545(b)(2) applies 

to this case, which set a time limit of sixty days for PCRA claims based upon

newly discovered facts. This distinction does not affect the outcome of this 

case, as discussed further infra.
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under Turner/Finley, Appellant’s abandonment claim rings hollow. See 

Appellant’s brief at 24 (conceding first PCRA counsel “did make some minimal 

effort to examine [Appellant’s] case and withdraw from representation”). 

Even assuming, arguendo, that Appellant’s discovery of PCRA counsel’s 

allegedly incorrect legal conclusion constitutes a newly discovered fact for the 

purposes of § 9545(b)(1)(ii), Appellant has offered no salient discussion of 

when and how he learned about his alleged RRRI eligibility and first PCRA 

counsel’s “abandonment” by failing to press that claim. Prior PCRA counsel’s 

letter disclaiming Appellant’s RRRI eligibility was sent on April 18, 2017, and

Appellant’s second PCRA petition was not filed until October 30, 2018. In his 

briefing before this Court, Appellant’s entire discussion of this eighteen-month 

latency period spans a single sentence: “While his current PCRA petition was 

not filed within one year of his sentencing becoming final, he has filed it within 

60 days of learning of his PCRA counsel’s total abdication of her responsibility 

to represent him, and thus it is timely.” Appellant’s brief at 23. Petitioners 

alleging abandonment under § 9545(b)(1)(ii) must still comply with 

§ 9545(b)(2) by presenting the claim within the appropriate time period. See 

Commonwealth v. Williams, 21 A.3d 236, 242-43 (Pa.Super. 2011).

In pertinent part, Appellant did not allege or demonstrate that he has 

acted with due diligence in advancing this claim, and, thus, he failed to satisfy 

the requirements of § 9545(b)(1)(ii). See Commonwealth v. Yarris, 731 

A.2d 581, (Pa. 1999) (holding that petitioner does not satisfy § 9545(b)(1)(ii)
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where “he makes no attempt to explain why the information . . . could not, 

with the exercise of due diligence, have been obtained much earlier”); see 

also Commonwealth v. Vega, 754 A.2d 714, 718 (Pa.Super. 2000) (holding 

that petitioner does not satisfy § 9545(b)(1)(ii) when he fails to provide the 

date on which he learned of the newly discovered facts).

We conclude that Appellant has failed to satisfy the timeliness exception 

at 42 Pa.C.S. § 9545(b)(1)(ii).2 Accordingly, we affirm the trial court’s 

dismissal of Appellant’s second PCRA petition as untimely.

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2

 Appellant has argued that our Supreme Court’s holding in Commonwealth 

v. Holmes, 933 A.2d 57, 65-66 (Pa. 2007), stands for the proposition that 

Appellant’s illegal sentence may be corrected pursuant to the sentencing 

court’s “inherent authority” even in the absence of jurisdiction under the 

PCRA. See Appellant’s brief at 12. Appellant has greatly mischaracterized 

the procedural posture of the Supreme Court’s holding in Holmes. In relevant 

part, the appeal in Holmes did not result from a petitioner seeking 

modification of an allegedly illegal sentence, but was a Commonwealth appeal 

from the sentencing court’s exercise of its “inherent power” to correct a patent 

error in its sentencing order, e.g., sentencing the defendant to a new sentence

after a parole violation instead of recommitting him for the remainder of his 

original sentence. Id. at 59-60. Instantly, the sentencing court has taken no 

such action and there has been no exercise of “inherent authority” by the 

sentencing court. Thus, Holmes is simply inapposite to the circumstances of 

this case. The Supreme Court’s holding in Holmes did nothing to alter the 

basic principle that the PCRA is “the sole means of obtaining collateral relief 

and encompasses all other common law and statutory remedies for the same 

purpose . . . .” 42 Pa.C.S. § 9542. Moreover, the Supreme Court has explicitly 

stated that “[a]lthough legality of sentence is always subject to review within 

the PCRA, claims must still satisfy the PCRA’s time limits or one of the 

exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 

1999) (emphasis added); see also Commonwealth v. Jackson, 30 A.3d 

516, 522 (Pa.Super. 2011) (“[W]e have found no authority wherein the 

appellate courts of this Commonwealth have recognized a PCRA court’s 

inherent jurisdiction to consider a claim filed after the expiration of the PCRA 
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/20

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filing period.”). The only arguably on-point citations offered by Appellant are 

to unpublished memoranda that were filed prior to May 2, 2019, which is a 

violation of this Court’s procedures. See Internal Operating Procedures of the 

Superior Court of Pennsylvania, § 65.37(B) (“An unpublished memorandum 

decision filed prior to May 2, 2019, shall not be relied upon or cited by Court

or a party in any other action or proceeding . . . .”). Overall, Appellant’s 

discussion of this novel argument is unavailing.