Com. v. Young, R.

J-S50036-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERT YOUNG, Appellant No. 427 WDA 2014 Appeal from the PCRA Order entered February 28, 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0004113-2010 & CP-02-CR-0004115-2010. BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014 pro se from the order denying his second petition for post-conviction relief filed pursuant to the Post Conviction -46. We affirm. The pertinent facts and procedural history may be summarized as follows: On January 13, 2011, Appellant pled guilty to drug charges at two different dockets. Subsequently, the trial court sentenced him to an aggregate term of 18 months intermediate punishment, under the terms and conditions of the Allegheny County Drug Court Program, followed by 12 months of probation. Thereafter, Appellant violated his probation and was revoked from the Drug Court Program. On February 27, 2012, the trial court resentenced Appellant to an aggregate term of 54 to 108 months of J-S50036-14 incarceration. Appellant filed neither post-sentence motions nor an appeal to this Court. Appellant filed a timely pro se PCRA petition on August 10, 2012, and the PCRA court appointed counsel. On April 4, 2013, PCRA counsel filed a - Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On May 13, 2013, the PCRA court filed Pa.R.Crim.P. 907 notice of its intent to er Although properly advised of his right to do so, Appellant did not file an appeal to this Court. On August 29, 2013, Appellant filed a second pro se PCRA petition. On January 27, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its again, Appellant did not file a response. By order entered February 28, second PCRA petition. This timely appeal followed. The PCRA court did not require Pa.R.A.P. 1925 compliance. petition under the PCRA is whether the determination of the PCRA court is -2- J-S50036-14 supported by the evidence of record and is free of legal error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a claim is patently frivolous and is without a trace of support in either the record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011 - subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc prima facie showing if he demonstrates that either the proceedings which resulted in his conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or that he was innocent of Id. Before addressing the issues Appellant presents on appeal, we must first consider whether the PCRA court properly determined that his petition was untimely. The timeliness of a post-conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation -3- J-S50036-14 omitted). Thus, if a petition is untimely, neither an appellate court nor the PCRA court has jurisdiction over the petition. Id raised in an untimely petition. Id. Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition. Commonwealth v. Gamboa- Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under been interference by government officials in the presentation of the claim; or (2) there exists after-discovered facts or evidence; or (3) a new Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition invoking one of these statu Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also raised before the lower court are waived and cannot be raised for the first -4- J-S50036-14 Because Appellant did not file a direct appeal to this Court following the imposition of his sentence, his judgment of sentence became final on March 28, 2012, thirty days after the time for filing a direct appeal to this Court had expired. 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file his second petition by March 28, 2013, in order for it to be timely. As Appellant filed the instant motion on August 29, 2013, it is untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999). time bar. Thus, the PCRA court correctly determined that it lacked jurisdiction to c - conviction relief. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/11/2014 -5-