J-A29021-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAWN LEANEIL DANIELS : : Appellant : No. 606 WDA 2021

Appeal from the PCRA Order Entered June 21, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0011757-2017

BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.* MEMORANDUM BY BOWES, J.: FILED: DECEMBER 13, 2021

Shawn Leaneil Daniels appeals pro se from the June 21, 2021 order dismissing as untimely his ninth petition filed pursuant to the Post Conviction Relief Act (“PCRA”). After careful review, we affirm.

On March 5, 2018, Appellant entered a negotiated guilty plea to aggravated indecent assault of a child and indecent assault of a person less than thirteen years of age. Appellant did not file a direct appeal. Thus, his sentence became final on April 4, 2018. See 42 Pa.C.S. § 9545(b)(3) (providing “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

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* Retired Senior Judge assigned to the Superior Court. J-A29021-21

the review”); Pa.R.A.P. 903(a) (providing that a notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken”).

Since his conviction in 2018, Appellant has filed numerous petitions seeking relief pursuant to the PCRA, none of which garnered him relief. On May 5, 2021, Appellant pro se filed the petition at issue in the instant appeal, alleging ineffective assistance of counsel and the discovery of new exculpatory evidence. See PCRA Petition, 5/5/21, at 2.

On May 7, 2021, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 informing Appellant of its intent to dismiss the petition without a hearing. Appellant did not file a response. On June 21, 2021, the PCRA court dismissed Appellant’s petition as untimely. This appeal followed. ^[1] Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

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[Appellant] had four witnesses with newly[-]discovered evidence to testify on [Appellant’s] behalf at a[n] evidentiary hearing?

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hear an untimely PCRA petition.” Commonwealth v. Ballance, 203 A.3d 1027, 1031 (Pa.Super. 2019). To obtain relief under the PCRA, a petition must be filed within one year from the date the judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1). Appellant’s petition, filed more than three years after his judgment of sentence became final, is thus facially untimely.

Pennsylvania courts may nonetheless consider an untimely PCRA petition if the petitioner plead and offered to prove one of the three timeliness exceptions set forth in § 9545(b)(1).3 Any petition invoking an exception must be filed within one year of the date the claim could have been presented. See

42 Pa.C.S § 9545(b)(2).

Appellant first asserted that his petition fell within the PCRA’s timeliness exception for newly discovered facts that could not have been discovered

____________________________________________ 3 The three statutory timeliness exceptions are as follows: (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; [and] (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. § 9545(b)(1).

J-A29021-21 earlier by exercising due diligence pursuant to 42 Pa.C.S. § 9545(b)(1)(ii). See PCRA Petition, 5/5/21, at 3.

Due diligence requires that a “petitioner take reasonable steps to protect his own interests.” Commonwealth v. Shaw, 217 A.3d 265, 270 (Pa.Super. 2019). A petitioner must explain why he could not have learned the new fact(s) earlier with the exercise of due diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001). “This rule is strictly enforced.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (citation omitted).

Appellant avers that four witnesses who could identify the actual perpetrator of the crimes to which Appellant pleaded guilty were “unavailable.” See PCRA Petition, 5/5/21, at 3, 7. Although Appellant listed in his petition the names and addresses of the four witnesses, Appellant did not state when he learned that these witnesses could offer exculpatory testimony or why he was not able to obtain this information earlier through the exercise of due diligence. Since Appellant failed to establish that he exercised due diligence to ascertain these “new facts,” the PCRA court properly concluded that Appellant failed to satisfy the timeliness exception provided in Section 9545(b)(1)(ii).

Appellant also asserted that his petition falls within the PCRA’s timeliness exception for newly recognized constitutional rights provided at 42

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Pa.C.S. § 9545(b)(1)(iii). See PCRA Petition, 5/5/21, at 3. The “newly- recognized constitutional right” exception has two requirements:

First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or [the Pennsylvania Supreme Court] after the time provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed. Commonwealth v. Spotz, 171 A.3d 675, 679 (Pa. 2017) (cleaned up).

In support of the invocation of this time-bar exception, Appellant merely claimed that “the cost of court was not enclosed with the guilty plea that violated the mandated sentencing code 42 Pa.C.S. § 9726.”4 PCRA Petition, 5/5/21, at 3. He did not identify which decision of the United States or Pennsylvania Supreme Court recognized a new constitutional right purportedly violated by the trial court in the instant case or that the relevant decision has been held to apply retroactively. Accordingly, Appellant has not plead and proved that a newly-recognized constitutional right applies to him.

____________________________________________ 4 42 Pa.C.S. § 9726 concerns the imposition of fines in addition to, or in lieu, of other sentencing options. It does not concern the imposition of court costs on a defendant at sentencing.

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In conclusion, the record supports the PCRA court’s finding that Appellant failed to plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1). Therefore, the PCRA court properly dismissed the untimely petition for lack of jurisdiction. Accordingly, we affirm the PCRA court’s dismissal order.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 12/13/2021