J-S16043-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

 Appellee

v.

PAUL GREGORY SHIMP 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1313 MDA 2017

Appeal from the PCRA Order August 25, 2017

in the Court of Common Pleas of Dauphin County 

Criminal Division at No.: CP-22-CR-0002040-2014

BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED MAY 21, 2018

Appellant, Paul Gregory Shimp, appeals, pro se, from the order of 

August 25, 2017,

1 dismissing as untimely his first petition filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

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1 On July 6, 2017, the PCRA court entered its Rule 907 notice of intent to 

dismiss and advised Appellant of his opportunity to respond within 20 days. 

On August 21, 2017, Appellant filed a pro se notice of appeal to this Court. 

The PCRA court entered its final order dismissing Appellant’s pro se petition 

on August 25, 2017. Although Appellant’s notice of appeal was premature 

when filed, we will regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A 

notice of appeal filed after the announcement of a determination but before 

the entry of an appealable order shall be treated as filed after such entry and 

on the day thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 

616, 618 n.3 (Pa. Super. 2012) (accepting premature notice of appeal filed 

after entry of Rule 907 notice but before final order dismissing PCRA petition).
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We take the underlying facts and procedural history in this matter from 

the PCRA court’s November 7, 2017 opinion and our independent review of 

the certified record.

On March 11, 2015, [Appellant] plead [sic] guilty to [t]heft 

by [u]nlawful [t]aking, and agreed to enter the Dauphin County 

Veteran’s Court Program for a thirty-six (36) month intermediate 

punishment sentence. [Appellant] was represented by Kristen

Weisenberger, Esquire.

[Appellant], through counsel, filed a [m]otion to [w]ithdraw 

[g]uilty [p]lea and [w]ithdraw as [c]ounsel on March 26, 2015. 

The [m]otion to [w]ithdraw [g]uilty [p]lea was denied by the

Honorable Bruce F. Bratton, now retired. [Appellant did not file a 

direct appeal].

On May 17, 2016, [Appellant] incurred new charges at 

Docket Number CP-22-CR-3439-2016. As a result, the court 

conducted a revocation hearing in Veteran’s Court on August 19, 

2016. Former Judge Bratton revoked [Appellant’s] intermediate 

punishment, and re-sentenced him to twenty-four (24) months of 

probation concurrent with his sentence on Docket Number CP-22-

CR-3439-2016. [Appellant] did not file a direct appeal.

Appellant filed his first pro se PCRA petition on December 2, 

2016. [The PCRA petition challenged only the original March 11, 

2015 guilty plea, it did not challenge the revocation proceedings]. 

Jonathan W. Crisp, Esquire was appointed by [the PCRA c]ourt to 

represent [Appellant] on his PCRA. On January 23, 2017, 

[Appellant] filed a motion requesting to proceed pro se throughout 

the PCRA proceedings. [The PCRA c]ourt conducted a Grazier[2]

hearing via video conference on April 7, 2017, wherein [Appellant]

again stated his intention to proceed pro se. At the conclusion of 

the hearing, [the PCRA c]ourt granted his request and permitted 

him leave to proceed pro se, as well as his request to amend his 

PCRA petition. [On April 13, 2017, Appellant filed an amended 

PCRA petition]. On July 6, 2017, [the PCRA c]ourt gave 

[Appellant] notice of [its] intent to dismiss his PCRA petition. [See 

Pennsylvania Rule of Criminal Procedure 907(1)]. [Appellant] 

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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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filed a response on July 20, 2017. [The PCRA c]ourt subsequently 

dismissed his PCRA petition on August [25], 2017. [Appellant] 

filed a timely [n]otice of [a]ppeal on August 21, 2017. On October 

3, 2017, [Appellant] was directed to file a concise statement of 

errors complained of on appeal. [See Pa.R.A.P. 1925(b). 

Appellant filed a timely Rule 1925(b) statement on October 27, 

2017. See id. On November 7, 2017, the PCRA court filed an 

opinion. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 11/07/17, at 1-2) (footnotes omitted).

On appeal, Appellant raises the following questions for this Court’s 

review.

I. Did the P.C.R.A. [c]ourt err in dismissing [Appellant’s] 

[PCRA] [p]etition without a hearing when [c]ounsel, Kristen 

Weisenberger, Esq. rendered ineffective assistance of [c]ounsel 

for failing to adequately prepare a defense which compelled 

[Appellant] to enter into an involuntary, unknowing, and 

[un]intelligent plea bargain?

II. Did the P.C.R.A. [c]ourt err in dismissing [Appellant’s] 

[PCRA] [p]etition without a hearing when [c]ounsel, Kristen 

Weisenberger, Esq. rendered ineffective assistance of [c]ounsel 

for failing to properly object to the defective guilty plea colloquy?

(Appellant’s Brief, at 4).

Our standard of review for an order denying PCRA relief is well-settled:

This Court’s standard of review regarding a PCRA court’s 

order is whether the determination of the PCRA court is supported 

by the evidence of record and is free of legal error. Great 

deference is granted to the findings of the PCRA court, and these 

findings will not be disturbed unless they have no support in the 

certified record. 

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations 

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a 
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trial court has no jurisdiction to entertain the petition.” Commonwealth v. 

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted). 

Here, Appellant filed his PCRA petition on December 2, 2016. The PCRA 

provides that “[a]ny petition under this subchapter, including a second or 

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of 

sentence became final on April 10, 2015, thirty days after the trial court 

imposed sentence and Appellant did not file a direct appeal with this Court. 

See id.; Pa.R.A.P. 903(a). Therefore, Appellant had one year, until April 11, 

2016,

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to file a timely PCRA petition. Because Appellant did not file his petition 

until December 2, 2016, the petition is facially untimely. Thus, he must plead 

and prove that he falls under one of the exceptions at Section 9545(b) of the 

PCRA. See 42 Pa.C.S.A. § 9545(b)(1).

Section 9545 provides that the court can still consider an untimely 

petition where the petitioner successfully proves that:

(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 

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3 April 10, 2016, was a Sunday.
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Supreme Court of Pennsylvania after the time period provided in 

this section and has been held by that court to apply retroactively. 

Id. Further, a petitioner who wishes to invoke any of the above exceptions 

must file the petition “within [sixty] days of the date the claim could have 

been presented.” Id. at § 9545(b)(2). The Pennsylvania Supreme Court has 

repeatedly stated that it is an appellant’s burden to plead and prove that one 

of the above-enumerated exceptions applies. See, e.g., Commonwealth v. 

Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 

(2008). 

Here, Appellant does not argue or even mention any of the above-listed 

exceptions. Instead, he argues that he received ineffective assistance of plea 

counsel. (See Appellant’s Brief, at 8-15).4 

Accordingly, because Appellant failed to plead and prove that his petition 

falls within one of the enumerated exceptions to the PCRA time-bar, it is 

untimely. Thus, the PCRA court properly dismissed it. We are without 

jurisdiction to consider the merits of his appeal.

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4 We note that this Court has long held that an appellant does not present an 

exception to the time-bar by claiming ineffective assistance of counsel. See 

Commonwealth v. Davis, 816 A.2d 1129, 1135 (Pa. Super. 2003), appeal 

denied, 839 A.2d 351 (Pa. 2003) (“[A]ttempts to utilize ineffective assistance 

of counsel claims as a means of escaping the jurisdictional time requirements 

for filing a PCRA petition have been regularly rejected by our courts.”) 

(citations omitted).
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Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/21/2018