J

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

COMMONWEALTH OF PENNSYLVANIA

v.

SHICON JORDAN

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 299 EDA 2021 Appeal from the PCRA Order Entered December 30, 2020 In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP

- 45

- CR

- 0000450

- 2014, CP

- 45

- CR

- 0000844

- 2014, CP

- 45

- CR

- 0000846

- 2014,

CP

- 45

- CR

- 0000847

- 2014

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E. * MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 23, 2021
Appellant, Shicon Jordan , appeals from the December 30, 2020 order
dismissing his second petition filed pursuant to the Post Conviction Relief Act
(“PC RA”), 42 Pa. C.S.A. §§ 9541

- 9546 , as untimely. After careful review, we

affirm. 1

The PCRA court summarized the releva nt procedural history of this case

as follows:
On January 28, 2015, [Appellant] was sentenced in

the four captioned cases to an aggregate of 144 to 288 month s in a state correctional institution, consecutive to a sentenc e previously imposed in case

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 The record reflects that the Commonwealth has not filed a brief in this matter.J

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- No. 2854 Criminal 2013

— a case not implicated or involved in the instant PCRA motion. The sentences in case Nos. 450 and 846 followed jury trial convictions; the s entences in case Nos. 844 and 847 were imposed based on closed guilty pleas

. The pleas and sentences were negotiated between [Appellant] and the Commonwealth and approved by the Court.
[Appellant] did not seek reconsideration or, file direct appeals. Ac cordingly, the judgments of sentence became final on February 27, 2015.
The negotiated plea and sentencing agreement provided that the sentence imposed in Case No. 844 would run concurrent to all other sentences. The judgment of sentence issued on Januar y 28, 2015 inadvertently omitted case No. 2854 Criminal 2013 as one of the case s to which the sentence in Case No. 844 was to run concurrent. Accordingly, on December 4 , 20 15, we issued an amended judgment which corrected the error and clarified that the sentence in Case No. 844 was concurrent to the sentence imposed in Case No. 2854 Criminal 2013 as well as other specified sentences.
On August 18, 2016, nearly 18 months after the judgments of sentence became final, [Appellant] filed
a PCRA motio n[, his first]. Since the Prior PCRA Motion was filed almost six months late and did not plead any exception to the one

- year PCRA filin g deadline, on August 26, 2016, we issued an order providing notice of our intent to dismiss the Prior PCRA motion as un timely. We incorporate that Order into this Order by reference.

Counsel was appointed and [Appellant] was given 40 days in which to object to dismissal, file an amended motion, or both. [Appellant] did not respond. Accordingly, on November 15, 2016, we issued an order dismissing the Prior [first] PCRA Motion. C ounsel did not file an appeal.
On March 18, 2019, [Appellant] mailed a pro se second PCRA motion from jail. Subsequently, weJ

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- issued an orde r which, among other things, appointed counsel, granted time for the filing of an amended PCRA motion, and directed the parties to address both jurisdictional timeliness filing issues and the law pertaining to second PCRA petitions.
Subsequently, [Appella nt] filed a counseled amended PCRA motion [on July 17, 2019 ]

. After continuances were requested and granted, several hearings were h eld. Both parties submitted evidence, arguments, and briefs.
PCRA court opinion, 2/24/21 at 1

- 2 ( parentheticals omitted)

. Following evidentiary hearings, the PCRA court denied Appellant’s
petition on December 30, 2020. On January 28, 2021, A ppellant filed
separate, timely notices of appeal at each docket number , listing all four trial

court docket nu mbers. That same day, the PCRA court directed Appellant to
file a concise statement of errors complained of on appeal, in accordance with

Pa.R.A.P. 1925(b)

. Appellant filed a timely Rule 1925(b) statement on February 17, 2021

. Thereafter, the PCRA cour t filed its Rule 1925(a) opinion on February 24,

2021 , adopting its prior December 30, 2020 memorandum.
On May 18, 2021, this Court issued a rule to show cause why the appeal

should not be quashed in light of Commonwealth v. Walker , 185 A.3d 969
(Pa. 2018). On May 19, 2021, Appellant filed a response to the rule to show

cause. On June 11, 2021, this Court entered an order discharging the rule to
show cause and referring this issue to the merits panel.J

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-

Prior to our consideration of the merits of thi s appeal, we must address

whether A ppellant’s notice of appeal complied with the requirements set forth
in Pennsylvania Rule of Appellate Procedure 341(a) and Walker . In Walker , our supreme court provided a bright

- line mandate requiring that “where a
single order resolves issues arising on more than one docket, separate notices
of appeal must be filed for each case,” or the appeal will be quashed. Id. at

185 A.3d at 971, 976

- 97 7. The Walker court applied its holding prospectively
to any notices of appeal filed after June 1, 2018.
In the instant case, A ppellant’s notices of appeal were filed on January
28, 2021 , and therefore, the Walker mandate applies. This appeal was of a
single order resolving issues arising on all four docket numbers. A review of
the record demonstrates that appellant filed separate notices of appeal at each
docket number; however, the notices of appeal referenced all four docket
numbers in their respective captions.

A recent en banc panel of this C ourt held that such a practice does not

invalidate A ppellant’s separate notices of appeal. Commonwealth v.

Johnson , 236 A.3d 1141 (Pa.Super. 2020) ( en banc ) , appeal denied , 242

A.3d 304 (Pa. 2 020)

. Accordingly, we turn to the merits of A ppellant’s appeal.
Appellant raises the following issues for our review:

1. Whether the [PCRA] court erred as a matter o f law and abused its discretion in f inding [Appellant’s ] PCRA petition was n ot timely filed?

2. Whether the [PCRA] court erred as a matter o f law and abused its discretion in findingJ

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- [Appellant’s] prior counsel was n ot ineffective in failing to amend his [PCRA] petition or failing to respond to the m otion to dismiss his [PCRA] petition? 3. Whether the [PCRA] court erred as a matter o f law and abused its discretion in f inding [Appellant’s] prior counsel was n ot ineffective in failing to notify [Appellant] that he was not going to r espond to the motio n to dismiss or file
an a mended [PCRA] on his behalf?

4. Whether the [PCRA] court erred as a matter o f law and abused its discretion in f inding [Appellant] was not induced to e nter into a plea under duress when he w as not guilty of the crime?

5. Whether the [PCRA] court erred as a matter o f law and abused its discretion in f inding [Appellant’s] prior counsel did n ot fail to investigate the case?

6. Whether the [PCRA] court erred as a matter o f law and abused its discretion in f inding [Appellant’s ] prior counsel was n ot ineffective for failing to file an a ppeal regarding an excessive sentence?
Appellant’s brief at 4

- 5

. Proper appellate review of a PCRA court ’ s dismissal of a PCRA petition

is limited to the 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 t he 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 theJ

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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).
Preliminarily , we must consider the timeliness of A ppellant ’ s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.

Commonwealth v. Davis , 86 A.3d 883, 887 (Pa.Su per. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must

be filed within one year of when a defendant’s judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1). “[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 o f Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the record reveals that Appellant’s judgment of sentence became
final on February 27, 2015 , when the 30

– day time period for filing a direct
appeal to t his Court expired. See id. Accordingly, A ppellant had until
February 27, 2016 to file a timely PCRA petition. I d. at § 9545(b)(1).
Appellant’s instant PCRA petition was filed March 18, 2019, more than four

years after his judgment of sentence became fi nal, and is patently untimely.
Accordingly, appellant was required to plead and prove that one of the three
statutory exceptions enumerated in Section 9545(b)(1) applies.
The three statutory exceptions to the PCRA time

- bar are as follows:
(i) the failure to raise the claim previously was the result of interference by government officialsJ

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- 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 fa cts 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.A. § 9545(b)(1)(i

- iii). A petition invoking any of these exceptions

must “ be filed within one year of t he date the claim could have been
presented. ” 42 Pa.C.S.A. § 9545(b)(2).
Instantly, A ppellant invokes the “newly

- discovered facts” exception to

the PCRA time

- bar and argues that he is entitled to a new trial based upon his
purported discovery that he was abandoned by his prior PCRA counsel 2 during
the pendency of his first PCRA petition

. Appellant’s brief at 14, 18

- 19, 31.
We disagree.
To be eligible for relie f on a claim of newly

- discovered evidence , a PCRA
petitioner must plead and prove by a preponderance of the evidence that the

evidence:

_________________ __________ ______ ____ _______

2 The record reflects that Appellant was represented during his first PCRA by Brian S. Gaglione, Esq.J

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- (1) could not have been obtained prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is n ot merely corroborative or cumulative; (3) will not be used solely to impeach the credibility of a witness; and (4) would likely result in a different verdict if a new trial were granted.

Commonwealth v. Foreman , 55 A.3d 532, 537 (Pa.Super. 2012) (citatio n omitted)

. Our supreme court has recognized that a ttorney abandonment
constituting ineffectiveness per se may constitute a factual basis for th e

” newly discovered facts ” exception

. In Commonwealth v. Peterson , 192

A.3d 1123 ( Pa. 2018 ) , our supreme court stated that:

[T] he principle

. . . that PCRA counsel ’ s ineffectiveness cannot be advanced as a newly

- discovered “fact” for purposes of application of the subsection 9545(b)(1)(ii) exception to the PCRA ’ s one - year time bar, has no application in cases where PCRA counsel ’ s ineffectiveness per se completely for ecloses review of collateral claims.

Id. at 1030.
Nonetheless, a petitioner invo king the ineffectiveness per se of his prior

PCRA counsel under subsection 9545(b)(1)(ii) is still required to plead and
prove that : (1) he filed his petition within the applicable time frame provided
by subsection 9545(b)(2 )

– in this case, one year – of when he was able to
first present his claim ; and (2) that he could not have presented the claim
earlier through the exercise of due dilig ence. See id. at 1130

- 1031 ( finding

that a petitioner’s second PCRA petition, based on ineffectiveness per se of
his prior PCRA counsel, was timely when filed within 60 days of when petitionerJ

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-

received a copy of Court ’s order quashing the appeal of his fi rst, untimely

filed PCRA petition).
Here, our review of the record reveals that A ppellant failed to file his

instant PCRA petition invoking the newly

- discovered fact exception within one

year of the date the claims could have been presented , as required by
Section 9545(b)(2). Appellant has also failed to prove that could not have
presented the claim earlier through the exercise of due diligence.
As recognized by the PCRA court,

t he record, including the docket and [Appellant’s] own testimony a nd exhibits, demonstrates that [Appellant] was served with the Order dismissing the Prior PCRA Motion. Thus, in late November, 2016, [Appellant] became aware that his motion had been denied. The evidence presented similarly demonstrates that at some point shortly thereafter, [Appellant] became aware through communications with appointed counsel that appointed counsel had not filed anything on his behalf. At the latest, [ Appellant ] absolutely became aware that no action had been taken on December 7, 2017, when our Clerk of Courts sent [Appellant] , at [Appellant’s] written request, a copy of the docket sheet. A docket sheet printed and mailed that day would have confirmed that the Prior PCRA Motion had been denied and shown that appointed counsel had n ot filed an objection or other response to the Notice of Intent Dismiss, submitted an amended PCRA motion, filed an appeal, or taken any other action of record on behalf of [Appellant]

. Nonetheless, the instant PCRA motion was not filed until March 18, 201 9, two years and three months after the docket sheet brought or in the exercise of due diligence should have brought to his attention the omissions of appointed counsel.

. . . .J

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- In

- between the time [Appellant] received the docket sheet and the filing of the instant PCRA motion, [Appellant] attempted to file pro se appeals, out

- of

time without permission, from the order dismissing the Prior PCRA Motion . However, those attempts were not made until well after the [one

- year] filing period expired. In fact, the instant PCRA was not filed until more than one year after the Superior Court returned to our Clerk ’ s Office a pro se appeal [Appellant] attempted to untimely file directly in the Superior Court. Simply, while [Appellant] caused some docket activity, h is actions were untimely and not diligent.
PCRA court opinion, 2/24/21 at 8

- 9.

Under Section 9545(b)(1)(ii), “due diligence requires neither perfect
vigilance nor punctilious care, but rather it requires reasonable efforts by a
petitioner , based on the particular circumstances, to uncover facts that may
support a claim for collateral relief.” Com monwealth v. Brown , 141 A.3d
491, 506 (Pa.Super. 2016) (citation omitt ed; emphasis added). Clearly,
appellant failed to undertake reasonable efforts in this instance.
Based on the foregoing, we find that A ppellant has failed to demonstrate

that his unti mely petitio n satisfies the newly

- discovered fact exception to th e
statutory one year time

- bar.
Appellant also argues that the untimeliness of the instant PCRA petition

should be excused due to the ineffective ness of his prior counsel with respectJ

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to his g uilty plea, investigation of the case, and sentencing

. 3 See Appellant’s

brief at 31

- 32 . We find that such relief is impermissible.
Courts in this Commonwealth have long recognized that there is no
statutory exception to the PCRA time

- bar applicable to claims alleging the
ineffectiveness of prior counsel. As our Supreme Court has explained:

It is well settled that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA. See Commonwealth v. Pursell , [ 749 A.2d 911, 915

- 9 16 ( Pa. 2000) ] (holding a petitioner ’ s claim in a second PCRA petition, that all prior counsel rendered ineffective assistance, did not invoke timeliness exception, as “government officials” did not include defe nse counsel); see also Commonwealth v. Gamboa
- Taylor , [ 753 A.2d 780, 785

- 7 86 ( Pa. 2000) ] (finding that the “fact” that current counsel discovered prior PCRA counsel failed to develop issue of trial counse l’ s ineffectiveness was not after

discovered evidenc e exception to time

- bar )[.]

Commonwealth v. Wharton , 886 A.2d 1120, 1127 (Pa. 2005 ) (citation
formatting amended ).
To allow Appellant to raise new claims of prior counsel ’s ineffectiveness

more than four years after his judgment became final directly conflicts with
the legislative mandate of Section 9545(b)(1) of the PCRA. See

Commonwealth v. Turner , 80 A.3d 754, 767 (Pa. 2013 ) (stating that the

PCRA places time limitations on claims , and in doing so, “ strikes a reasonable

_________________ __________ ______ ____ _______

3 The record reflects that Appellant was represented at trial by Chandra V. Bliece, Esq.J

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-

balance between soc iety ’ s need for finality in criminal cases and the convicted

person ’ s need to demonstrate that there has been an error in the proceedings
that resulted in his conviction”) , cert. denied , 572 U.S. 1039 (2014). The
fact that Appellant frames some of his iss ues as alleging the ineffectiveness

of prior counsel simply does not overcome this Court’s lack of jurisdiction to

address them.
Accordingly, for all the foregoing reasons , we discern no error on the
part of the PCRA court in dismissing Appellant’s second petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/23/2021