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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. LANNY B. HARRIS Appellant No. 1901 EDA 2015

Appeal from the PCRA Order entered October 23 , 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP

- 51

- CR

- 0903241

- 2002

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED AUGUST 24, 2016 Appellant, Lanny B. Harris, appeals pro se from the order the Court of Common Pleas of Philadelphia County entered on October 23, 2013 dismissing his petition pursuant to the Post

- Conviction R elief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 46. Upon review, we affirm. The PCRA court summarized the relevant background in its July 28, 2015 opinion, which we adopt here by reference. Briefly, on March 17, 2005, following a probation revocation hearing, Appellant was sentenced to five to ten years’ imprisonment in connection with his guilty plea to possession of a controlled substance (cocaine) with intent to deliver. Appellant filed a PCRA petition on August 29, 2006, which the PCRA court dismissed on May 22, 2009. On January 28, 2013, Appellant filed the instant PCRA petition, his second, which the PCRA court dismissed onJ

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October 23, 2013, as untimely. On November 26, 2013, Appellant filed another PCRA petition, his third. The PCRA court appointed counsel, and on August 14, 2014 an amended PCRA petition was filed. On May 29, 2015, the PCRA court granted nunc pro tunc reinstatement of Appellant’s right to appeal from the dismissal of the January 2013 PCRA petition. Upon request, Appellant’s counsel was allowed to withdraw from the representation. Appellant pro se timely appealed the order dismissing his second PCRA petition. The PCRA court ordered Appellant to file Pa.R.A.P. a 1925(b) statement within 21 days of the order. Appellant, however, fai led to do so. The PCRA court order denying as untimely Appellant’s January 28, 2013 PCRA petition is now before us for disposition. Appellant argues the trial court erred in several instances with regard to his prior filings. 1 Nowhere, however, does Appe llant explain whether we can entertain the merits of his challenges. In fact, we cannot. “[A]n appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its

____________________________________________ 1 Appellant alleges he filed an untimely motion for reconsideration on October 21, 2005, which the trial court failed to treat as a PCRA petition. There is no record of a motion filed on that day. The trial court’s docket sheet shows an entry on October 31, 2005 stating: “PETITION FILE MAINTENANCE ADMINISTRATIVE DELETION”. The entry following the October 31, 2005 notation concerns the filing, on August 29, 2006, of Appellant’s P CRA petition.J

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conclusions of law to determi ne whether they are free from legal error.” Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). A PCRA petition, including a second or a subsequent petition, must be filed within one year of the judgment becoming final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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.A. § 9545(b)(3 ). There are some exceptions to this general rule. It is Appellant’s duty, however, to allege and prove the applicability of the exceptions, and that the petition was filed within 60 days of the date the claim could have been presented. See 42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the petition. See , e.g. , Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999). Here, Appellant’s judgment became final on April 18, 2005, at the expiration of 30 days for filing a direct appeal. See Pa.R.A.P. 903; 42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date to file a timely PCRA petition. The instant petition was filed on January 28, 2013, more than seven years after the expiration of the above deadline. The petition is, therefore, facially untimely. Thus, Appellant had to allege and prove he met one of the exceptions to the time

- bar. Appellant did not doJ

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so. 2 Accordingly, we affirm the order of the PCRA court dismissing Appellant’s instant petition as untimely. 3 W e direct that a copy of the trial court’s July 28, 2015 opinion be attached to any future filings in this case. Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2016

____________________________________________ 2 On appeal, for the first time, Appellant alleges that he met the “governmental interference” exception because the trial court failed to appoint counsel in connection with his October 21, 2005 motion. Appellant’s Brief at 15. The argu ment is waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). In any event, it is well

- settled that the timeliness exceptions must be pled in the PCRA petition. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007) (“[ E]xceptions to the time bar must be pled in the PCRA petition, and may not be raised for the first time on appeal.”). Here, Appellant did not even acknowledge a timeliness issue, let alone address the appl icability of any exception in his petition. Additionally, we do not see any connection between the trial court’s alleged “error” in 2005 and the untimeliness of the instant petition. Finally, nowhere did Appellant state when he first learned of the “gove rnmental interference” and what prevented him from filing a petition within 60 days from the discovery of the interference. See 42 Pa.C.S.A. § 9545(b)(2).

3 We also note that Appellant failed to file a Rule 1925(b) statement, despite the PCRA court ’s order to do so. Failure to file said statement generally results in a waiver of the issues raised on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill , 16 A.3d 484, 494 (Pa. 2011).

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### Procedural Posture CHRIS R

. WOGAN, J. 

# FILED
JUL 2 8 2015



### . Crimin~! Appeals Unit F,rst Jud1c1a1 District of PA OPINION LANNY B. HARRIS SUPERIOR COURT 1901 EDA 2015 

### v. CP-51-CR-0903241-2002 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Circulated 07/28/2016 09:46 AM2

2 I n he r Finl ey l e tt e r , co u nse l wro t e th a t p et iti o n er d i d n o t fil e h is c l a im un ti l A u gu s t , 2 0 0 6, over a y e ar af

ter th e tr ial co urt d e ni e d his Petiti o n for R ec o n s id erati o n of S e nt ence . "T h ere fo r e , th i s [ pe titi o n ] wa s n o t ti m e l y. " T h ese d a t es are a cc o r din g t o the S ec ure D oc ket i n thi s case . De fen dant s t a te s th a t h e fi l ed th e rec o n s id erati o n o f se nt e n ce o n M ar c h 1 7 , 2005 , a nd it was de ni ed o n M arc h 2 4 , 2005

. P CRA coun se l E mil y B e th Ch e rniack , Esqu i r e, a l s o wro t e th os e d ate s i n h er Fi nl ey L etter. Co mmo n w e a lth v. Finl ey , 3 7 9 P a . S upe r. 390, 55 0 A. 2d 2 13 (1 9 8 8). O n Oc t o b er 2 1 , 2005, d efen dan t fil e d an un ti m e l y pro se " M o ti o n For M o difi cati o n Of S ente n ce Nu n c P ro Tu n e." 

### goi n g t o di s mi ss hi s s ec ond P CRA Petit io n as untimel y; o n O cto ber 7 , 20 1 3, th e he ari n g o n Sep te mber 23, 2 0 13 , th is court se n t defend a nt a 9 0 7 Noti ce th at it was On J a nu ary 2 8, 2 013 , defend a nt filed a prose sec o nd P C RA P e t it ion

. A fte r a were with o ut m er it. The P C RA P etit ion was fo r m a lly dis mis se d on May 22, 2 00 9

. p e ti ti o n w ere w ithou t m e rit , an d h i s a tto rn e y al so det er mined th a t th e i s sue s rai s ed N oti c e under Pa

. R

. C ri m. P

. 9 07 , w ritin g that the i ss ue s r ai se d in defendant 's As Co un se l o n A pril 2 4 , 200 9

. 2 

### On Ap ril 2 4 , 2 00 9, thi s co urt fil e d a d is mi ssa l ap peara nce on J a nu ary 18, 20 07 , a nd fil e d a Fi nley letter a nd P e titi o n T o W ithd raw §95 41 , e t seq . PCRA co u ns el , E mil y B e th Chern iac k , Es quir e , ent e r e d h e r sys t e m as a P etition pur s u a nt to the P o st Co n vi c tio n Rel ie f Act ( PCRA ) , 4 2 Pa

. C. S

. Relief/D is mi ssa l C o rrec tion of S e n te nce .. . " Thi s "w ri t " was class i fi ed by the cou rt On Au g u s t 29, 20 06, d efe nd a nt filed a " Writ o f H abea s Corpu s w hi c h was deni e d o n A pril 2 1 , 20 05

. 1 

### D efe nd a n t fil e d a " Pe t iti o n To Re co n s id e r V OP S e n te n c e " o n M arc h 2 4 , 200 5,3



### Defendant sought rein s tatement of his right to appeal this court's October
23 , 2013, Order denying his second filed PCRA Petition. 

### See Amended Petition
Under The Post Conviction Relief Act , Aug. 14, 2014, ~15. His second PCRA Petition was untimely filed because it was not filed within one year of the date hi s Discussion 907 Notice was filed. On October 23, 2013, the second PCRA Petition was formally dismissed. On November 26, 2013, a third 

### pro se PCRA Petition was filed. On May 20, 2014, Sandjai Weaver, Esquire, entered her appearance. On August 14, 2014, a counseled Amended PCRA Petition was filed. On April 28, 2015 , the Commonwealth agreed to 

### nunc pro tun e reinstatement of defendant's appellate rights; on May 29, 2015, defendant's appellate rights were reinstated. On June 21, 2015, attorney Weaver filed a Motion to Withdraw as counsel.
On June 22 , 2015, defendant filed a 

### prose Notice of Appeal. On July l, 2015, and re-sent July 15, 2015, this court ordered 

### pro se defendant to file a
Statement Of Errors Complained Of On Appeal within 21 days of the date of the Order. The Superior Court Docket lists that defendant is being represented on appeal by Sandjai Weaver, Esquire. In the interest of time, this court will address the only issue that can be raised on appeal, the timeliness of the PCRA Petition.4

3 See 4 2 Pa

. C. S

. §9 545, Juri s diction a nd Proceeding s (b ) Time fo r filing petition

. >- (1 ) An y petiti o n unde r thi s s ub c hapt er, includin g a se c o nd o r s u b se qu e n t p e titi o n , s h a ll be fil e d w i thin o n e y e ar of th e dat e th e ju dg m e nt b ec om es fi n al , unle s s th e p e titi o n a lle ges and th e p e tition e r p roves th at: (i) the f a ilur e to rai se th e cl ai m p rev i o u s l y was th e res ult of int erfe r e n ce b y go ve rnment o ffi c ial s w ith the pr ese n tati o n o f th e c l a im i n v i o l ation o f th e Co n s titution or l a w s of thi s C ommonwe a lth o r th e Co n s ti tu tion o r la ws of th e U nited Stat e s ; ( ii) th e fa c ts up o n which th e cl a im i s pr e dic at e d we r e unkn ow n t o th e p e titi on e r a nd c ould n o t hav e b ee n a sc ert a in e d b y th e e x e r c i s e of du e di l i ge nc e; or ( iii ) the ri g ht a s s e rted i s a c on s titutional ri g ht th at was r ec o g ni z e d b y th e S upr e m e Co urt o f th e U nit e d St at es o r th e S upr e me Co urt o f P e nn sy l va nia a f

t e r the tim e peri o d p rov id e d in thi s sec ti o n a n d h as b ee n h e ld b y that co urt t o app l y r e troa c tiv e l y. 

### and defendant's sentence should stand. exceptions to the l a te filing

. Defendant's PCRA Petition was properly dismiss e d Defendant's second PCRA Petition was untimely and did not plead any Con cl usio n exception s to e x cuse the late filing. 

### S ee 42 Pa.C.S

. § 9545(b ). 3 

### judgment became final and defendant did not even plead any of the three 

## ) )