J-S10014-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD EUGENE TOKARCIK, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1026 WDA 2023

Appeal from the PCRA Order Entered August 8, 2023

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

No(s): CP-33-CR-0000083-2010

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD EUGENE TOKARCIK JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1027 WDA 2023

Appeal from the PCRA Order Entered August 8, 2023

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

No(s): CP-33-CR-0000081-2010

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD E. TOKARCIK, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1028 WDA 2023

Appeal from the PCRA Order Entered August 8, 2023

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

No(s): CP-33-CR-0000220-2010

COMMONWEALTH OF PENNSYLVANIA :

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA
J-S10014-24

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v.

RICHARD E. TOKARCIK, JR. 

Appellant

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: No. 1029 WDA 2023

Appeal from the PCRA Order Entered August 8, 2023

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

No(s): CP-33-CR-0000219-2010

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD EUGENE TOKARCIK JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1030 WDA 2023

Appeal from the PCRA Order Entered August 8, 2023

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

No(s): CP-33-CR-0000218-2010

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY OLSON, J.: FILED: April 30, 2024

In this consolidated appeal,1 Appellant, Richard Eugene Tokarcik, Jr., 

appeals from the August 8, 2023 order entered in the Court of Common Pleas 

of Jefferson County that denied his petitions filed pursuant to the Post 

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1

In an October 17, 2023 per curiam order, this Court consolidated sua sponte

Appellant’s five appeals docketed with this Court at 1026 WDA 2023, 

1027 WDA 2023, 1028 WDA 2023, 1029 WDA 2023, and 1030 WDA 2023.
J-S10014-24

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Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.2 We affirm the 

order, in part, vacate the order, in part, and remand the case for further 

proceedings in accordance with this memorandum.

The record reveals that, on March 7, 2011, Appellant pleaded guilty to 

nine counts of burglary and two counts of access device fraud at the 

aforementioned trial court dockets, as well as one count of burglary at trial 

court docket CP-33-CR-0000217-2010 (“Case 217-2010”).3 That same day, 

upon Appellant’s waiver of a pre-sentence investigation report, the trial court 

sentenced Appellant to an aggregate term of 5 to 10 years’ incarceration, 

subject to eligibility for the recidivism risk reduction incentive program after 

50 months’ incarceration, to be followed by 91 years’ probation.4

____________________________________________

2 The August 8, 2023 order denying Appellant’s petitions was entered on trial 

court dockets: CP-33-CR-0000081-2010 (“Case 81-2010”), 

CP-33-CR-0000083-2010 (“Case 83-2010”), CP-33-CR-0000218-2010 

(“Case 218-2010”), CP-33-CR-0000219-2010 (“Case 219-2010”), and

CP-33-CR-0000220-2010 (“Case 220-2010”) because the petitions challenged

Appellant’s criminal convictions and probation revocation sentences imposed 

at each of the aforementioned trial court dockets. Appellant filed a separate 

notice of appeal at each of the aforementioned trial court dockets.

3 18 Pa.C.S.A. §§ 3502(a) (10 counts) and 4106(a)(1)(ii) (2 counts).

4

In Case 217-2010, Appellant pleaded guilty to one count of burglary and was 

sentenced to 5 to 10 years’ incarceration with the sentence set to run 

concurrently to a sentence Appellant was then-serving in Clearfield County, 

Pennsylvania. In Case 218-2010, Appellant pleaded guilty to one count of 

burglary and was sentenced to 10 years’ probation with the term of probation 

set to run consecutively to the sentence imposed in Case 217-2010. In 

Case 219-2010, Appellant pleaded guilty to one count of burglary and was 

sentenced to 10 years’ probation with the term of probation set to run 
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On May 9, 2011, Appellant filed pro se a PCRA petition, his first, 

asserting, inter alia, that his guilty plea was unlawfully induced and that his 

trial counsel was ineffective during the guilty plea colloquy. PCRA counsel was 

appointed and, ultimately, this Court affirmed the order denying Appellant’s 

petition. Commonwealth v. Tokarcik, 2014 WL 10795288 (Pa. Super. filed 

Oct. 8, 2014) (unpublished memorandum).

In January 2017, while on parole, Appellant committed several new 

criminal offenses.5 As a result of these new criminal charges, the trial court 

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consecutively to the sentence imposed in Case 218-2010. In Case 220-2010, 

Appellant pleaded guilty to seven counts of burglary. On Count 1, Appellant 

was sentenced to 10 years’ probation with the term of probation set to run 

consecutively to the sentence imposed in Case 219-2010. On the remaining 

six counts of burglary, Appellant was sentenced to 10 years’ probation on each 

count with the terms of probation set to run concurrently to each other and 

set to run concurrently to the sentence imposed on Count 1. In Case 81-2010, 

Appellant pleaded guilty to one count of access device fraud and was 

sentenced to one year of probation with the term of probation set to run 

consecutively to the sentence imposed in Case 220-2010. In Case 83-2010, 

Appellant pleaded guilty to one count of access device fraud and was 

sentenced to one year of probation with the term of probation set to run 

concurrently to the sentence imposed in Case 81-2010.

5 The new criminal allegations lodged against Appellant were summarized as 

follows:

[B]etween Sunday, January 1, 2017[, and] Friday, January 6, 

2017, [Appellant] engaged in behavior which threatened the 

safety and well-being of [two] minor female children by 

encouraging the minors [via cellular telephone textual] messaging 

to [become] intoxicated prior to [Appellant] meeting them with

[Appellant having] the intention of [engaging in] sex with both 

minor females.
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issued a detainer on January 10, 2017, and Appellant was taken into custody 

pending a Gagnon I6 hearing. On January 27, 2017, Mark A. Wallisch, Esquire 

(“Attorney Wallisch”) entered his appearance on behalf of Appellant in 

Case 218-2010, Case 219-2010, Case 220-2010, Case 81-2010, and 

Case 83-2010 (collectively, “the probation revocation cases”).

On February 1, 2017, in the probation revocation cases, Appellant was 

charged with violating the conditions of his probation.7 Specifically, Appellant 

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Notice of Charges and Hearing Rights & Written Request for Revocation, 

2/1/17.

On January 8, 2017, Appellant was charged with criminal attempt, criminal 

solicitation, corruption of minors, sexual abuse of children, unlawful contact 

with a minor, and criminal use of a communication facility (10 counts). Id. 

The new criminal charges were filed against Appellant at trial court docket 

CP-33-CR-0000132-2017 (“Case 132-2017”)

6 Gagnon v. Scarpelli 411 U.S. 778 (1973). A Gagnon I hearing is a prerevocation hearing at which the Commonwealth must establish that probable 

cause exists to believe that a probation violation has been committed. 

Commonwealth v. Ferguson 761 A.2d 613, 617 (Pa. Super. 2000).

7 To be clear, Appellant’s probationary sentences had not commenced as of 

February 1, 2017, in any of the probation revocation cases. At that time, 

Pennsylvania jurisprudence allowed trial courts to revoke probation in 

anticipation of the commencement of a supervisory sentence. In 

Commonwealth v. Rosario, 294 A.3d 338 (Pa. 2023), however, our 

Supreme held that “the plain language of the statute governing probation 

revocation [(in most cases, 42 Pa.C.S.A. § 9771)] prohibits [the] practice” of 

anticipatory revocation of probation. Rosario, 294 A.3d at 341, 349. The 

Rosario Court, therefore, held that anticipatory revocation of probationary

sentences was illegal. Id. at 359.

In his March 2023 PCRA petition, as discussed infra, Appellant sought to 

invalidate his revocation sentences imposed in the probation revocation cases. 
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was charged with failing “to abide by the laws of the Commonwealth”

(Probation Condition #4) and “to refrain from threatening and overt behavior 

which threatens or presents a clear and present danger to others” (Probation 

Condition #10). After conducting a Gagnon I hearing, the trial court ordered 

that Appellant remain in police custody pending the outcome of the underlying 

charges in Case 132-2017. Gagnon Order, 2/1/17.

In Case 132-2017, a jury convicted Appellant on October 19, 2017, of 

numerous sex-based offenses involving a minor. Commonwealth v. 

Tokarcik, 2019 WL 5595843, at *1 (Pa. Super. filed Oct. 30, 2019) 

(unpublished memorandum), appeal denied, 233 A.3d 678 (Pa. 2020). On

February 7, 2018, the trial court sentenced Appellant in Case 132-2017 to an 

aggregate term of 10 to 20 years’ incarceration. Tokarcik, 2019 WL 

5595843, at *2. That same day, the trial court conducted a Gagnon II8

hearing in the probation revocation cases, which are the subject of the instant 

appeal. At the conclusion of the hearing, the trial court revoked Appellant’s 

probation in Case 218-2010, Case 219-2010, Case 220-2010, Case 81-2010, 

and Case 83-2010. Gagnon Order, 2/8/18. The trial court then resentenced 

Appellant to an aggregate term of 22 to 44 years’ incarceration with the 

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Appellant, however, must first successfully invoke a timeliness exception to 

the PCRA jurisdictional time-bar to gain a vehicle (i.e., a timely PCRA petition) 

for doing so.

8

If the trial court finds probable cause at the Gagnon I hearing, a second, 

more comprehensive Gagnon II hearing is required before a final revocation 

decision can be made. Ferguson, 761 A.2d at 617.
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sentences set to run consecutively to the sentence imposed in 

Case 132-2017.9 Id. Appellant did not file a post-sentence motion or appeal 

his judgments of sentence in the probation revocation cases. As such, 

Appellant’s judgments of sentence in the probation revocation cases became 

final on March 9, 2018. See Pa.R.A.P. 903(a) (stating that, a notice of appeal 

“shall 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, “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”).

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9

In Case 218-2010, the trial court resentenced Appellant to a term of 5 to 10 

years’ incarceration with the sentence set to run consecutively to the sentence 

imposed in Case 132-2017. In Case 219-2010, the trial court resentenced 

Appellant to a term of 5 to 10 years’ incarceration with the sentence set to 

run consecutively to the sentence imposed in Case 218-2010. In 

Case 220-2010, the trial court resentenced Appellant to a term of 5 to 10 

years’ incarceration on Count 1 (burglary) with the sentence set to run 

consecutively to the sentence imposed in Case 219-2010. On the remaining 

six counts of burglary in Case 220-2010, the trial court resentenced Appellant 

to a term of 5 to 10 year’s incarceration on each count with the sentences set 

to run concurrently to each other and concurrently to the sentence imposed 

on Count 1 (and, thus, consecutively to the revocation sentence imposed at 

Case 219-2010). In Case 81-2010, the trial court resentenced Appellant to 

31⁄2 to 7 years’ incarceration with the sentence set to run consecutively to the 

sentences imposed in Case 220-2010. Finally, in Case 83-2010, the trial court 

resentenced Appellant to 31⁄2 to 7 years’ incarceration with the sentence set 

to run consecutively to the sentence imposed in Case 81-2010. Gagnon

Order, 2/1/18. On February 14, 2018, the trial court amended the February 

1, 2018 sentencing order to award Appellant credit for time served. Corrected 

Gagnon Order, 2/14/18.
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On May 21, 2020, Attorney Wallisch filed a motion to withdraw his 

appearance in Case 218-2010, Case 219-2010, Case 220-2010, 

Case 81-2010, and Case 83-2010, which the trial court granted the following 

day. On March 24, 2022, Appellant filed pro se a motion to correct an illegal 

sentence.10 The PCRA court, upon receipt of Appellant’s motion, properly 

considered the motion to be a petition filed pursuant to the PCRA because 

Appellant’s judgments of sentence were final and the motion requested relief 

contemplated by the PCRA (i.e., correction of an illegal sentence).

11

 See 

Commonwealth v. Fantuazzi, 275 A.3d 986, 955 (Pa. Super. 2022) 

(stating, “regardless of how a petition is titled, courts are to treat a petition 

filed after a judgment of sentence becomes final as a PCRA petition if it 

requests relief contemplated by the PCRA”), appeal denied, 289 A.3d 41 (Pa. 

2022); see also 42 Pa.C.S.A. § 9543(a)(2)(vii) (stating that, to be eligible for 

relief under the PCRA, a petitioner must plead and prove by a preponderance 

of the evidence that the sentence resulted from the “imposition of a sentence 

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10 Appellant’s pro se motion to correct an illegal sentence was timestamped 

as having been received by the PCRA court on March 30, 2022. The envelope

that Appellant used to mail his motion is not included in the certified record. 

A review of the motion, however, reveals that the motion was dated March 

24, 2022. Pursuant to the “prisoner mailbox rule,” we deem Appellant’s 

motion as filed on March 24, 2022. See Commonwealth v. Jones, 700 A.2d 

423, 426 (Pa. 1997) (explaining that, pursuant to the “prisoner mailbox rule,” 

a document is deemed filed on the date an inmate deposits the mailing with 

prisoner authorities or placed it in the prison mailbox).

11 For ease of discussion, this PCRA petition, as amended in April 2022, is 

identified as the “March 2022 petition.”
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greater than the lawful maximum”). On April 22, 2022, Appellant filed pro se

an amended PCRA petition.12 On May 18, 2022, the PCRA court appointed 

counsel to represent Appellant.

On July 22, 2022, Appellant filed pro se a motion to discontinue the 

March 2022 petition.13 On August 1, 2022, the PCRA court denied Appellant’s 

pro se motion to discontinue his March 2022 petition.14

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12 Appellant’s pro se amended PCRA petition, captioned as an “Amended 

Motion to Correct an Illegal Sentence pursuant to 42 Pa.C.S.[A.] § 9545,” was 

timestamped as having been received by the PCRA court on April 27, 2022. 

The envelope that Appellant used to mail his amended petition is not included 

in the certified record. A review of the amended petition, however, reveals 

that the amended petition was dated April 22, 2022. Pursuant to the “prisoner 

mailbox rule,” we deem Appellant’s amended petition as filed on April 22, 

2022. See Jones, 700 A.2d at 426.

13 Appellant’s pro se motion to discontinue his March 2022 petition was 

timestamped as having been received by the PCRA court on July 28, 2022. 

The envelope that Appellant used to mail his motion is not included in the 

certified record. A review of the motion, however, reveals that the motion 

was dated July 22, 2022. Pursuant to the “prisoner mailbox rule,” we deem 

Appellant’s motion as filed on July 22, 2022. See Jones, 700 A.2d at 426.

14 The record does not indicate that the PCRA court forwarded Appellant’s 

motion to discontinue his March 2022 petition to PCRA counsel, despite 

Appellant being represented by counsel. On August 1, 2022, the PCRA court 

denied Appellant’s motion to discontinue and, in so doing, stated

Because [Appellant] does have [PCRA] counsel, however, the 

[PCRA c]ourt will not enter an order that will change the status of 

the pending petition [(the March 2022 petition)] except in 

response to a pleading filed by [PCRA counsel] as counsel of 

record. Accordingly, should [Appellant,] in fact[,] wish to 

withdraw his petition or do otherwise, he shall communicate his 

intention to [PCRA] counsel, who, one way or the other, should 
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On March 14, 2023, Appellant filed pro se a second PCRA petition.15 On 

March 20, 2023, the PCRA court, noting that Appellant was represented by 

counsel, entered Appellant’s March 14, 2023 pro se petition on the docket and 

forwarded the petition to counsel.16

On April 10, 2023, Appellant filed with the PCRA court a letter directed 

to his PCRA counsel. In his letter, Appellant stated that he wanted current 

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act with reasonable speed and diligence to finally resolve the 

matter.

PCRA Court Order, 8/1/22.

In denying Appellant’s motion to discontinue, the PCRA court dismissed 

Appellant’s motion without taking action on the matter and provided

instruction to both Appellant and PCRA counsel on how to proceed if Appellant 

wished to discontinue his March 2022 petition. Therefore, we find the 

principles governing hybrid representation where not implicated in the case 

sub judice. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) 

(setting forth the well-established principle that a petitioner, who is 

represented by counsel, typically has no constitutional right to hybrid 

representation in a PCRA court or an appellate court); see also 

Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 2011) (stating that, “the 

proper response to any pro se pleading [(other than a pro se notice of appeal)] 

is to refer the pleading to counsel, and to take no further action on the pro se

pleading unless counsel forwards a motion”), abrogated on other grounds by, 

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

15 Appellant’s pro se petition was timestamped as having been received by the 

PCRA court on March 17, 2023. The envelope that Appellant used to mail his 

petition is not included in the certified record. A review of the petition, 

however, reveals that the petition was dated March 14, 2023. Pursuant to the 

“prisoner mailbox rule,” we deem Appellant’s petition as filed on March 14, 

2023. See Jones, 700 A.2d at 426.

16 For ease of discussion, the PCRA petition filed on March 14, 2023, as 

amended on June 29, 2023, is identified as the “March 2023 petition.”
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PCRA counsel to file a motion for the appointment of new counsel on the 

ground that then-current PCRA counsel failed to respond to Appellant’s 

correspondence and requests for information.

17

 Letter, 4/10/23. Upon receipt 

of Appellant’s pro se filing, the PCRA court scheduled a hearing on the matter

for July 7, 2023. Meanwhile, on June 29, 2023, Appellant filed pro se an 

amended PCRA petition seeking to amend his March 2023 petition to request

reinstatement of his direct appeal rights nunc pro tunc.

18

On July 7, 2023, upon conclusion of a hearing, Appellant filed pro se a 

motion seeking an additional hearing to address his request for the 

appointment of new PCRA counsel.19 In his pro se motion, Appellant asserted 

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17 Appellant’s letter was timestamped as having been received by the PCRA 

court on April 14, 2023. The envelope that Appellant used to mail his letter

is not included in the certified record. A review of the letter, however, reveals 

that the letter was dated April 10, 2023. Pursuant to the “prisoner mailbox 

rule,” we deem Appellant’s letter as filed on April 10, 2023. See Jones, 700 

A.2d at 426.

18 Appellant’s pro se amended petition was timestamped as having been 

received by the PCRA court on July 3, 2023. The envelope that Appellant used 

to mail his amended petition is not included in the certified record. A review 

of the amended petition, however, reveals that the petition was dated June 

29, 2023. Pursuant to the “prisoner mailbox rule,” we deem Appellant’s 

amended petition as filed on June 29, 2023. See Jones, 700 A.2d at 426.

19 Appellant’s pro se motion was timestamped as having been received by the 

PCRA court on July 12, 2022. The envelope that Appellant used to mail his 

motion is not included in the certified record. A review of the motion, however, 

reveals that the motion was dated July 7, 2022. Pursuant to the “prisoner 

mailbox rule,” we deem Appellant’s motion as filed on July 7, 2022. See 

Jones, 700 A.2d at 426.
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that the PCRA court did not address his request for the appointment of new 

counsel at the July 7, 2023 hearing.

On July 19, 2023, Appellant filed with the PCRA court a copy of a letter 

dated July 15, 2023, and addressed to PCRA counsel. In his letter, Appellant 

stated,

I believe the only PCRA petition referenced at the [July 7, 2023] 

hearing was the petition filed prior to your appointment, which 

was titled “motion to correct an illegal sentence” and filed [on] 

March [24], 2023. That petition is untimely on its face and does 

not allege any exception to the time requirement of 42 Pa.C.S.[A. 

§ ]9545.

I never received notice that you amended that petition to meet 

any time requirement, nor did you expostulate at the hearing on 

July 7, 2023[,] to include the PCRA petition filed March [14], 2023, 

which alleges and included documented proof of newly-discovered 

facts, which is an exception to the one[-]year time limit of 

[Section] 9545.

As this is my first PCRA petition[,] I do believe I have the right to 

be permitted to file an amended petition with the assistance of 

counsel and the timeliness requirement of a PCRA petition is an 

amendable issue.

Pro Se Letter, 7/15/23.
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On July 27, 2023, PCRA counsel filed a response to Appellant’s July 7, 

2023 motion. On August 8, 2023, the PCRA court denied Appellant’s March 

2022 petition and his March 2023 petition.

20

 This appeal followed.21

Appellant raises the following issues for our review:

[1.] Whether the sentences imposed on February 7, 2018 

following the anticipatory revocation of [Appellant’s] 

then[-]pending probation are illegal in light of 

Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. [] 

2021)[22]?

[2.] Whether the PCRA court erred in denying [Appellant’s PCRA] 

claim for ineffective assistance of counsel as untimely 

where: [Appellant] requested that [John M. Ingros, Esquire 

(“Attorney Ingros”)23] file an appeal challenging the 

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20 A PCRA court is not “jurisdictionally barred from considering multiple PCRA 

petitions relating to the same judgment of sentence at the same time, unless 

[a PCRA court] order regarding a previously filed petition [relating to that

same judgment of sentence] is on appeal and, therefore, not yet final.” 

Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018), 

appeal denied, 190 A.3d 1134 (Pa. 2018). Therefore, in the case sub judice, 

the PCRA court was permitted to dispose of both the March 2022 petition and 

the March 2023 petition in its August 3, 2023 order.

21 Both Appellant and the PCRA court complied with Pennsylvania Rule of 

Appellate Procedure 1925.

[22]

In Simmons, this Court en banc held that a trial court could not 

anticipatorily revoke an order of probation before the period of probation 

began. The Pennsylvania Supreme Court subsequently decided Rosario, 

supra which confirmed that anticipatory revocation of probationary sentences 

is illegal.

23 In his March 2023 petition, Appellant identified Attorney Ingros as the 

counsel who abandoned Appellant by failing to file a direct appeal of the 

judgments of sentence in the probation revocation cases. As discussed infra, 

Appellant’s identification of Attorney Ingros is misplaced. At the conclusion of 
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probation revocation sentences]; no appeal appears on the 

record; and, in his March 7, 2018 letter to [Appellant], 

Attorney Ingros informed [Appellant] that an appeal would 

go beyond one year, [and] that the time to file a PCRA 

petition would begin at the conclusion of the direct appeal, 

but [Attorney Ingros] did not specify that he did not appeal 

the [probation revocation] sentences imposed on February 

7, 2018?

Appellant’s Brief at 4 (extraneous capitalization omitted).

24

Appellant’s claims challenge the PCRA court’s dismissal of his March 

2022 and March 2023 petitions, asserting that the PCRA court erroneously 

determined that Appellant failed to plead and prove one of the timeliness 

exceptions enumerated in Section 9545(b)(1) and, as such, his petitions were 

untimely. Id. at 15-22.

Our scope and standard of review of an order denying a PCRA petition 

is well-settled. Proper appellate review of a PCRA court’s dismissal of a 

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the Gagnon II hearing, Appellant was represented by Attorney Wallisch who, 

at that time, remained counsel of record in Case 218-2010, Case 219-2010, 

Case 220-2010, Case 81-2010, and Case 83-2010. As counsel of record in 

the probation revocation cases, Attorney Wallisch, not Attorney Ingros, owed 

any extant duty to perfect Appellant’s direct appeals from the judgments 

entered in the probation revocation cases.

24 We note that Appellant’s brief, filed with this Court on January 23, 2024, is 

untimely. See Per Curiam Order, 11/28/23 (requiring Appellant’s brief to be 

filed on or before December 29, 2023). Although we do not condone the 

untimely filing of an appellate brief, we do not, in the case sub judice, find 

that the late filing of the appellate brief precludes our review. Moreover, the 

Commonwealth did not object to the late filing but, instead, stated in a letter 

filed with this Court on February 20, 2024, that it did not intend to file a

response brief.

For ease of disposition, Appellant’s issues have been reorganized.
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petition is limited to an examination of “whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citation 

omitted). “The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Lawson, 

90 A.3d 1, 4 (Pa. Super. 2014) (citations omitted). “This Court grants great 

deference to the findings of the PCRA court, and we will not disturb those 

findings merely because the record could support a contrary holding.” 

Commonwealth v. Hickman, 799 A.2d 136, 140 (Pa. Super. 2002) (citation 

omitted). In contrast, we review the PCRA court’s legal conclusions de novo. 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014) (en banc), 

appeal denied, 101 A.3d 785 (Pa. 2014).

If a PCRA petition is untimely, courts lack jurisdiction over the claims 

and cannot grant relief. Reid, 235 A.3d at 1143 (stating, “[w]ithout

jurisdiction, [courts] simply do not have legal authority to address the 

substantive claims” (citation and original quotation marks omitted)). As 

discussed supra, Appellant’s judgments of sentence in the probation 

revocation cases became final on March 9, 2018. Appellant filed pro se the 

March 2022 petition on March 24, 2022, more than three years after the 

deadline for filing a timely PCRA petition. Moreover, Appellant filed pro se the 

March 2023 petition on March 14, 2023, more than four years after the 

deadline for filing a timely PCRA petition. Therefore, Appellant’s petitions are 

both patently untimely.
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If a PCRA petition is untimely, the jurisdictional 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 the one-year time-bar are as follows: “(1) interference by government 

officials in the presentation of the claim; (2) newly[-]discovered 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 one year of the date that the claim could have been presented. 42 

Pa.C.S.A. § 9545(b)(2). If a petitioner fails to invoke a valid exception to the 

PCRA time-bar, courts are without jurisdiction to review the petition and 

provide relief. Spotz, 171 A.3d at 676.

Here, in his March 2022 and March 2023 petitions, Appellant asserts 

that his discovery of this Court’s decision in Simmons, supra, triggered the

newly-discovered fact exception set forth at Section 9545(b)(1)(ii). In his

March 2023 petition, Appellant also asserts that counsel’s failure to appeal 

the judgments of sentence in the probation revocation cases amounted to

complete abandonment by counsel and that his discovery of this abandonment 

constituted a newly-discovered fact.

To invoke the newly-discovered facts exception, a petitioner must plead 

and prove facts that were unknown to the petitioner despite the exercise of 

due diligence. Commonwealth v. Reid, 235 A.3d 1124, 1144 (Pa. 2020), 
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citing 42 Pa.C.S.A. § 9545(b)(1)(ii). “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.” 

Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and original 

quotation marks omitted). The petitioner must offer “evidence that he[, or 

she,] exercised due diligence in obtaining facts upon which his[, or her,] claim 

was based.” Id. at 227, citing Commonwealth v. Breakiron, 781 A.2d 94, 

98 (Pa. 2001). The question of whether a petitioner, based upon the 

circumstances of a particular case, would have been unable to discover the 

newly-discovered fact notwithstanding the exercise of due diligence is a 

question that requires fact-finding, and the PCRA court, as the fact-finder, 

should determine whether a petitioner demonstrated this requirement of the 

exception. Commonwealth v. Bennet, 930 A.2d 1264, 1274 (Pa. 2007).

“[T]he newly[-]discovered fact[s] exception[, however,] does not 

require any merits analysis of the underlying claim, and application of the 

time-bar exception[,] therefore[,] does not necessitate proof of the elements 

of a claim of after-discovered evidence.” Commonwealth v. Small, 238 A.3d 

1267, 1286 (Pa. 2020) (original quotation marks omitted) (noting that, the 

newly-discovered facts exception to the jurisdictional time-bar is distinct from 

an after-discovered evidence claim, which is a substantive basis for relief 

pursuant to 42 Pa.C.S.A. § 9543(a)(2)(iv)); see also Commonwealth v. 

Fears, 250 A.3d 1180, 1189 (Pa. 2021) (stating, an analysis pertaining to 

whether a petitioner has sufficiently pleaded and proven the newly-discovered 
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facts exception to the jurisdictional time-bar prohibits a merits analysis of the 

underlying claim). For purposes of the newly-discovered facts exception, a 

determination that the facts were unknown to the petitioner is 

circumstance-dependent and requires an analysis of the petitioner’s 

knowledge. Small, 238 A.3d at 1283.

Preliminarily we examine the procedural posture of the case sub judice

as it implicates our review of Appellant’s issues. On January 27, 2017, 

Attorney Wallisch, an attorney in the Jefferson County public defender’s office,

entered his appearance on behalf of Appellant “for the purpose of a Gagnon

[h]earing.” Entry of Appearance, 1/27/17. Thus, as of January 27, 2017, 

Attorney Wallisch was counsel of record for Appellant in the probation 

revocation cases. Attorney Wallisch remained attached as counsel in the 

probation revocation cases until May 22, 2020, when the trial court granted 

his motion to withdraw.

Proceedings before the trial court on February 7, 2018, included not only 

the imposition of sentence at Case 132-2017 but also the pronouncement of 

sentence in the probation revocation cases. See generally, N.T., 2/7/18. 

Specifically, as discussed supra, Appellant was sentenced in Case 132-2017 

to an aggregate term of 10 to 20 years’ incarceration. Id. at 17-18. On that 

same date, Appellant’s supervisory punishment was revoked, and he was 

resentenced in the probation revocation cases to an aggregate term of 22 to 

44 years’ incarceration with the sentences set to run consecutively to the 

sentence imposed in Case 132-2017. Id. at 28-30; see also Gagnon Order, 
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2/8/18. For purpose of sentencing in Case 132-2017, Appellant was 

represented by Attorney Ingros, also an attorney in the Jefferson County 

public defender’s office, and Attorney Ingros was present at the sentencing 

hearing. N.T., 2/7/18, at 2-9. Attorney Wallisch was not present, however, 

at the February 7, 2018 probation revocation and resentencing hearing. See 

generally, N.T., 2/7/18.

Thus, for purpose of clarity, Attorney Wallisch represented Appellant 

with regard to the five judgments of sentence imposed in the probation 

revocation cases that are implicated in the current appeal. Attorney Ingros 

represented Appellant for purpose of the judgment of sentence imposed in 

Case 132-2017, which is not implicated in the current appeal.

After Appellant was sentenced in Case 132-2017, Attorney Ingros filed 

a direct appeal challenging the judgment of sentence entered in 

Case 132-2017. See Tokarcik, 2019 WL 5595843, at *1. Attorney Wallisch 

did not appeal the judgments of sentence entered in Case 218-2010, 

Case 219-2010, Case 220-2010, Case 81-2010, and Case 83-2010.

On May 21, 2020, Attorney Wallisch filed a motion to withdraw his 

appearance on behalf of Appellant in the probation revocation cases. The trial 

court granted Attorney Wallisch’s request on May 22, 2020. Thus, as of May 

22, 2020, Appellant was no longer represented by counsel in Case 218-2010, 

Case 219-2010, Case 220-2010, Case 81-2010, and Case 83-2010.

Appellant filed pro se a PCRA petition on March 24, 2022, which he

amended on April 22, 2022. PCRA counsel was appointed to represent 
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Appellant regarding the March 2022 petition. On March 14, 2023, Appellant 

filed pro se a second PCRA petition, which he amended on June 29, 2023.

In both his March 2022 petition and in his March 2023 petition, Appellant 

asserted that this Court’s decision in Simmons, supra, constituted a 

newly-discovered fact for purpose of the Section 9545(b)(1)(ii) timeliness 

exception to the jurisdictional time-bar. In Reid, supra, our Supreme Court 

reiterated the well-established principle that judicial decisions cannot 

constitute “new facts” for purpose of the Section 9545(b)(1)(ii) exception. 

Reid, 235 A.3d at 1148; see also Commonwealth v. Watts, 23 A.3d 980, 

986 (Pa. 2011) (stating, “judicial decisions are not facts”). Consequently, 

Appellant’s argument that this Court’s decision in Simmons, supra, satisfied

the newly-discovered facts exception is without merit.

Appellant next asserts that his counsel in Case 218-2010, 

Case 219-2010, Case 220-2010, Case 81-2010, and Case 83-2010 was 

ineffective for failing to appeal the judgments of sentence entered in the

probation revocation cases. Appellant’s Brief at 15-18. Appellant contends 

that counsel’s ineffectiveness amounted to abandonment, and Appellant’s 

discovery of this abandonment constituted a newly-discovered fact for 

purpose of Section 9545(b)(1)(ii). Id.

It is well-established that an allegation of ineffectiveness is, typically, 

not sufficient to overcome an otherwise untimely PCRA petition. 

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (stating 

that, a claim for ineffective assistance of counsel does not save an otherwise 
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untimely petition for review on the merits); see also Commonwealth v. 

Robinson, 139 A.3d 178, 186 (Pa. 2016) (stating that, our Supreme Court 

“has never suggested that the right to effective PCRA counsel can be enforced 

via an untimely filed PCRA petition”).

In Bennett, supra, our Supreme Court carved out a narrow exception 

to the decision announced in Gamboa-Taylor. The Bennett Court held that 

where a petitioner’s allegation of counsel’s ineffectiveness “emanates from the 

complete denial of counsel,” Section 9545(b)(1)(ii) permits that claim to be 

considered on its merits despite the claim being raised in an untimely PCRA 

petition. Bennet, 930 A.2d at 1273 (stating that, “the analysis set forth in 

Gamboa–Taylor and subsequent case law does not apply to situations when 

counsel abandons his[, or her,] client for purposes of appeal”); see also 

Commonwealth v. Peterson, 192 A.3d 1123, 1130-1131 (Pa. 2018) 

(stating that, counsel’s abandonment of a defendant (or petitioner, depending 

on the procedural posture) constitutes ineffectiveness per se and is a 

“newly-discovered fact” for purpose of Section 9545(b)(1)(ii)).

Several years later, our Supreme Court clarified its holding in Bennett, 

supra, stating that nothing in Bennett or Section 9545(b)(1)(ii) supports a 

conclusion that a claim of counsel ineffectiveness based upon allegations of 

abandonment presumptively or automatically overcomes the PCRA 

jurisdictional time-bar. Watts, 23 A.3d at 986. Rather, to constitute a

newly-discovered fact, counsel’s abandonment must have been unknown to 

the petitioner and undiscoverable through the exercise of due diligence. Id. 
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Additionally, a petitioner must file a petition invoking counsel’s 

newly-discovered abandonment within one year of discovery. 42 Pa.C.S.A. 

§ 9545(b)(2).

In determining whether PCRA counsel “completely abandoned” a 

petitioner, our Supreme Court has explained that “the failure to file a 

requested direct appeal . . . is the functional equivalent of having no counsel 

at all.” Bennett, 930 A.2d at 1273, citing Commonwealth v. Halley, 870 

A.2d 795 (Pa. 2005); see also Peterson, 192 A.3d at 1131 (explaining that, 

abandonment arises from counsel’s actions, or inactions, that result in the 

complete deprivation of a client’s appellate review).

In the case sub judice, the PCRA court, in finding that Appellant’s claim 

of abandonment failed to satisfy the newly-discovered facts exception under 

Section 9545(b)(1)(ii), stated,

To avail himself of [Section] 9545(b)(1)(ii), [Appellant] has to 

prove both that he was previously unaware that Attorney Ingros 

failed to directly appeal his probation [revocation] sentences and 

that he could not have ascertained that fact by the exercise of due 

diligence[. The] record[, however,] indicates quite the opposite.

In a letter to [Appellant] dated July 12, 2017[,] and referencing 

“Commonwealth v. Tokarcik - Attempt SSA and Others,”

Attorney Ingros discussed the new charges [filed at 

Case 132-2017] at length, explaining legal principles relevant to 

concerns his client had apparently raised. He made no mention 

of the [probation revocation] cases until the final substantive 

paragraph, where [Attorney Ingros] noted that he was more 

concerned about what [the trial court] would do with the pending 

probation violations and assured [Appellant] that he would try to 

secure a favorable plea offer encompassing all the cases.

When [Appellant] was later sentenced after being found guilty by 

a jury [in Case 132-2017, Appellant] made it clear that he wanted 
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to appeal. In that regard, when the [trial] court asked[, at the 

February 7, 2018 hearing,] whether [Appellant] had any questions

about his sentences, he responded, “Only to [Attorney] Ingros 

about what we should appeal.” Thereafter, Attorney Ingros filed 

post-sentence motions and, explaining his intended appellate 

strategy to [Appellant], detailed why he saw no value in advancing 

a sentencing claim. He added that he would provide copies of all 

pleadings he filed subsequent to the notice of appeal and[,]

because he only filed a notice of appeal at [Case 132-2017], each 

[copy of a filing] he provided would have referenced only that 

docket number. [Appellant,] thus[,] should have recognized well 

within the PCRA's statute of limitations that counsel had not

appealed the revocation sentences. He was, after all, not a 

no[v]ice to the legal system, including the ins[-]and[-]outs of 

appellate review. The record discloses as much.

To the extent [Appellant] may not have realized from Attorney 

Ingros's correspondence that his probation [revocation] sentences 

were not part of the then-pending appeal, [this Court’s decisional 

memorandum] filed October 30, 2019[,] made it perfectly clear, 

not only that [Case 132-2017] was the only case at issue, but also 

that counsel had not asked [this] Court to decide anything 

pertaining to the [probation revocation] sentences. Captioned in 

part “Petition for Allowance of Appeal from the Order of the 

Superior Court,” our Supreme Court then issued an order on May 

13, 2020[,] denying [Appellant’s] petition for allowance of 

appeal.[] Because there was only one [] order [from this Court]

to which [the petition for allowance of appeal] could have been 

referring, [our Supreme Court’s] order [denying review] further 

confirmed that the appellate courts had not been asked to 

evaluate [Appellant’s probation revocation] sentences.

Nonetheless, [Appellant] waited nearly [three] more years to

allege that Attorney Ingros was ineffective for failing to file a direct 

appeal in [the probation revocation] cases.

In light of the above, [Appellant’s] claim clearly is not amenable 

to the newly[-]discovered facts exception. What the record 

indicates is that [Appellant] had every piece of information he 

needed to ascertain years ago that Attorney Ingros did not appeal 

his probation [revocation] sentences. Whether by making the 

most evident inference when every document he received

referenced only [Case 132-2017] or by exercising due diligence to 

further investigate the apparent implication, he certainly should 

have discovered the omission long before the PCRA's statute of 

limitations expired. Accordingly, the following admonition from 
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Commonwealth v. Carr, 768 A.2d 1164 (Pa. Super. 2001), is 

directly on point:

Trial counsel's failure to file a direct appeal was discoverable 

during [Carr’s] one-year window to file a timely PCRA 

petition[. Carr] had a full year to learn if a direct appeal had 

been filed on his behalf. A [tele]phone call to his attorney 

or the clerk of courts would have readily revealed that no 

appeal had been filed. Due diligence requires that [Carr]

take such steps to protect his own interests.

Id. at 1168. In this case, [Appellant] knew as early as March []

2018 that Attorney Ingros did not intend to appeal his [probation 

revocation] sentence[s], and every document he received after 

that should have confirmed that counsel had not changed his 

mind. Yet [Appellant] failed to reach out to his attorney, the 

Jefferson County clerk of courts, or anyone else who might have 

had the relevant knowledge until long after the PCRA's statute of 

limitations [] expired for [the probation revocation] cases. 

Accordingly, [the PCRA] court reaches the same conclusion that 

[this Court] reached in Carr, “The mere fact that [Carr] alleges 

his trial counsel was ineffective for not filing his appeal does not 

save his petition from the PCRA's timeliness requirements.”

PCRA Court Opinion, 8/8/23, at 2-3 (record citations, some case citations, 

original brackets, and extraneous capitalization omitted; emphasis added).

While it is undisputed, and the record supports, that Attorney Ingros 

represented Appellant in Case 132-2017 at both the February 7, 2018 

sentencing hearing and on direct appeal of the judgment of sentence imposed 

in Case 132-2017, we cannot find record support for the PCRA court’s 

determination that Appellant was represented, for purposes of the probation

revocation cases, by Attorney Ingros at the February 7, 2018 hearing. Rather, 

the record before us unequivocally establishes that Attorney Wallisch 

represented Appellant in the probation revocation cases from the filing of his 

entry of appearance on January 27, 2017, until the order granting his motion 
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to withdraw on May 22, 2020. This period of representation clearly included 

the February 7, 2018, probation revocation and resentencing hearing. The 

trial court also identified Attorney Wallisch as Appellant’s counsel on the 

probation revocation form filed on February 15, 2018. See Probation 

Revocation Form, 2/15/18 (listing “defense counsel” as “Attorney Wallisch”). 

Finally, in response to Appellant’s pro se motion to discontinue his March 2022 

petition, the PCRA court informed Appellant that “the official record [in the 

probation revocation cases] reflects that the [Jefferson County] Public 

Defender[’]s Office, last acting through [Attorney Wallisch], petitioned and 

was granted leave to withdraw as counsel in May 2020[.]” PCRA Court Order, 

8/1/22. Therefore, in analyzing Appellant’s claim of abandonment, the PCRA 

court erred in assuming that Attorney Ingros served as Appellant’s counsel of

record in the probation revocation cases.

As discussed supra, Attorney Wallisch was counsel of record for 

Appellant in the probation revocation cases during the time period that 

included the February 7, 20218 probation revocation and resentencing 

hearing. Furthermore, the record establishes that Attorney Wallisch was not 

present at the February 7, 2018 probation revocation and resentencing 

hearing, and Attorney Wallisch did not file a direct appeal challenging the 

judgments of sentence imposed in the probation revocation cases. As counsel

of record, Attorney Wallisch was under an obligation to appear with Appellant 

at the February 7, 2018 probation revocation and resentencing hearing and 

to advise Appellant during the hearing and about the necessity of an appeal
J-S10014-24

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or seek a continuance if he was unable to appear. The trial court record

reveals that Attorney Wallisch did not seek a continuance.

We are constrained in this matter to vacate the portion of the order 

denying Appellant’s March 2023 petition as it relates to his claim of 

ineffectiveness of trial counsel and whether, or not, this ineffectiveness 

constituted abandonment for purpose of the newly-discovered facts exception 

to the jurisdictional time-bar. Upon remand, an evidentiary hearing is 

required to develop a factual record analyzing the actions, and inactions, of 

relevant counsel, namely Attorney Wallisch, to determine if Attorney 

Wallisch abandoned Appellant for purpose of the newly-discovered facts 

exception (see Bennett, supra) and when Appellant could have reasonably 

learned of the abandonment through the exercise of due diligence. In 

particular, the PCRA court must determine, inter alia, (1) whether Attorney 

Wallisch received notice of the February 7, 2018 Gagnon II hearing and, as 

counsel of record, simply failed to appear and advise Appellant as required

(including a discussion of the right to an appeal);

25 (2) whether Appellant was 

aware who represented him in the probation revocation cases on February 7, 

2018, and, relatedly, what Attorney Wallisch and Attorney Ingros understood 

____________________________________________

25 The certified record before us does not contain a scheduling order pertaining 

to the Gagnon II hearing. Therefore, it is unclear if Attorney Wallisch were

informed of the February 7, 2018 Gagnon II hearing.
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their duties towards Appellant to be;

26 (3) whether Appellant requested that 

notices of appeal challenging the judgments of sentence entered in the 

probation revocation cases be filed;

27 and (4) when Appellant became aware 

____________________________________________

26 Neither Appellant, Attorney Ingros, nor the trial court raised the absence of 

Attorney Wallisch as an issue during the Gagnon II hearing. Rather, in his 

July 22, 2022 motion to discontinue his March 2022 petition, Appellant 

asserted:

[Appellant] has letters from [Attorney] Ingros indicating he is 

counsel in the [probation revocation cases].

[Attorney] Ingros appeared for all consultations, and all legal 

proceedings, which includes sentencing for the probation 

violation[s].

At sentencing[, the trial] court stated on the record that 

[Attorney] Ingros is counsel.

[Appellant] discussed appeal strategies with [Attorney] Ingros for 

the probation violation [cases].

Pro Se Motion to Discontinue PCRA Petition, 7/22/22, at ¶¶3-6. As such, some 

questions exist as to Appellant’s understanding of which attorney from the 

Jefferson County public defender’s office represented him for purpose of the 

probation revocation cases, which must be resolved at the PCRA evidentiary 

hearing upon remand.

27 At the February 7, 2018 hearing, the trial court stated, 

The reason I’m doing it this way [(referring to sentencing 

Appellant in Case 132-2017 first and then holding a Gagnon II

hearing)] is, one I want to get all of the [sexual offender 

registration] stuff out of the way, and [second], your probation 

sentences have a slightly different right of appeal. So before we 

leave this case [(referring to Case 132-2017)], do you have any 

questions or anything you don’t understand?
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that Attorney Wallisch did not appeal the judgments of sentence entered in 

the probation revocation cases.28

In conclusion, we affirm the portion of the August 8, 2023 order that 

denied Appellant’s March 2022 petition and March 2023 petition as untimely 

and without exception on the ground that this Court’s decision in Simmons, 

supra, did not constitute a newly-discovered fact for purpose of Section 

9545(b)(1)(ii). We are constrained, however, to vacate the portion of the

August 8, 2023 order that denied Appellant’s March 2023 petition as untimely 

and without exception on the ground that trial counsel’s actions, or inactions, 

did not constitute abandonment sufficient to overcome the jurisdictional 

time-bar pursuant to Section 9545(b)(1)(ii). We remand this case for purpose 

____________________________________________

N.T., 2/7/18, at 24 (paragraph formatting omitted). Appellant replied, “Only 

to [Attorney] Ingros about what we should appeal.” Therefore, Appellant 

clearly indicated his desire to file a notice of appeal. This statement, however, 

was made at the conclusion of Case 132-2017 and before the imposition of 

the probation revocation sentences. Moreover, Appellant indicated his desire 

for Attorney Ingros to file an appeal, but Appellant was represented by 

Attorney Wallisch for purpose of the probation revocation cases.

28 The PCRA court, based upon a review of the March 7, 2018 letter from 

Attorney Ingros and directed to Appellant, found that Appellant “should have 

recognized well within the PCRA’s [one-year jurisdictional time-bar] that 

counsel had not appealed the revocation sentences.” PCRA Court Opinion, 

8/8/23, at 2. We cannot agree. A review of the March 7, 2018 letter reveals 

a discussion by Attorney Ingros regarding the post-sentence and appellate 

processes related to Case 132-2017, Attorney Ingros’ proposed strategy and 

likelihood of success in that case, and the suspected timeframe for resolution

of an appeal in Case 132-2017. This letter does not discuss the judgments of 

sentence imposed in the probation revocation cases or the appeals thereof

(nor should the letter discuss such subjects since Attorney Wallisch, and not

Attorney Ingros, represented Appellant in the probation revocation cases).
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of an evidentiary hearing to establish a factual record in accordance with this 

memorandum.

Order affirmed, in part, and vacated, in part. Case remanded. 

Jurisdiction relinquished.

DATE: 04/30/2024