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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH M. HOUGHTON,
Appellant No. 2862 EDA 2013
Appeal from the PCRA Order Entered September 17, 2013
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001073-2010
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 08, 2014
Appellant, Joseph M. Houghton, appeals pro se from the trial court’s
September 17, 2013 order denying his petition for relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court set forth the procedural history of this case as follows:
On August 9, 2010, Appellant entered a negotiated guilty
plea to three counts of Possession with Intent to Deliver and was
immediately sentenced … to: an aggregate state term of
imprisonment totaling 15-36 months, plus four years of
consecutive state probation. No Post-sentence Motions were
filed. In addition, [] Appellant never filed a timely direct appeal
to the Pennsylvania Superior Court.
One year later, on August 9, 2011, Appellant filed a pro se
“Application for Permission to file Nunc Pro Tunc Appeal” with the
Superior Court. On August 29, 2011, the Superior Court denied
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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his pro se appeal without prejudice to [his ability] to apply for
relief in the trial court via the [PCRA]….
Eventually, on May 9, 2013, [] Appellant filed a Petition
under the … []PCRA[], and subsequently Henry DiBenedetto
Forrest, Esquire[,] was appointed to represent [] Appellant. On
June 13, 2013, [counsel] … determined that there were no
issues of merit and submitted a “no merit” letter pursuant to …
Commonwealth v. Turner, … 544 A.2d 927 ([Pa.] 1988)[, and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)].
On June 14, 2013, the [PCRA] [c]ourt[,] after considering
counsel’s no merit letter and after an independent review of the
record[,] filed a Notice of Intent to Dismiss [Appellant’s] PCRA
petition without a hearing. On September 18, 2013, the Court
denied Appellant’s PCRA [p]etition. On October 10, 2013[,]
Appellant filed a timely Notice of Appeal, and on October 16,
2013[,] the [c]ourt filed a[n] … order directing Appellant to file a
Concise Statement of [Errors] Complained of on Appeal pursuant
to Pa.R.A.P. 1925[(b)]. The [o]rder provided:
Appellant shall forthwith – and no later than twenty-one
(21) days following the date of this Order [-] file of record
in the lower Court and serve on the trial judge a Concise
Statement of [Errors] Complained of on Appeal. Pursuant
to Pa.R.A.P. 1925(b), failure to comply with such direction
may be considered by the Appellate Court as a waiver of
all objections to the Order, ruling or other matters
complained of.
As of the date of this opinion, Appellant has filed no Statement
of [Errors] Complained of on Appeal.
PCRA Court Opinion (PCO), 3/5/14, at 1-2 (footnotes omitted).
After this Court granted Appellant several extensions of time within
which to file his appellate brief, he filed an untimely pro se brief with this
Court on August 25, 2014. Because the Commonwealth did not move for
dismissal of this appeal based on Appellant’s untimely-filed brief, we will
overlook this error. See Pa.R.A.P. 2188 (“If an appellant fails to file his …
brief … within the time prescribed by these rules, or within the time as
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extended, an appellee may move for dismissal of the matter.”)
(emphasis added); see also Commonwealth v. Miller, 787 A.2d 1036,
1038 n.5 (Pa. Super. 2001) (noting it is within our discretion to address the
merits of an appeal where the appellant’s brief was untimely filed and the
Commonwealth did not move for dismissal pursuant to Rule 2188).
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
We must begin by addressing the timeliness of Appellant’s petition,
because the PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded to address the merits of the petition); Commonwealth v.
Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior
Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA
petition). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
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in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner 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 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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on September 9,
2010, thirty days after his judgment of sentence was imposed. See 42
Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion
of direct review or the expiration of the time for seeking the review);
Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of
appeal required by Rule 902 (manner of taking appeal) shall be filed [with
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the Superior Court] within 30 days after the entry of the order from which
the appeal is taken.”). Thus, Appellant had until September 9, 2011, to file
a timely petition, making his May 9, 2013 petition patently untimely.
Consequently, for this Court to have jurisdiction to review the merits of this
appeal, Appellant must prove that he meets one of the exceptions to the
timeliness requirements set forth in 42 Pa.C.S. § 9545(b).
From what we can ascertain from Appellant’s handwritten brief (which
does not fully comply with the briefing requirements set forth in the
Pennsylvania Rules of Appellate Procedure), Appellant avers that his plea
counsel acted ineffectively by “steadfastly refus[ing] to get [Appellant]
proper discovery and to advance [his] defense of entrapment.” Initially, this
claim is waived because Appellant did not file a Rule 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.”). Nevertheless, even had Appellant preserved this issue in a
timely-filed Rule 1925(b) statement, it would not satisfy one of the above-
stated exceptions. Both our Supreme Court and this Court have stated that
claims of ineffectiveness generally cannot save an otherwise untimely PCRA
petition. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785
(holding that ineffectiveness of counsel claim generally does not constitute
an exception to the PCRA time requirements); Commonwealth v.
Williams, 35 A.3d 44, 54 (Pa. Super. 2011) (citing Gamboa-Taylor in
concluding that the appellant could not rely on an ineffective assistance of
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counsel claim to satisfy one of the exceptions set forth in 42 Pa.C.S. §
9545(b)(1)(i)-(iii)). Accordingly, we agree with the PCRA court that
Appellant’s petition was untimely and that he has failed to plead and prove
the applicability of a timeliness exception.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2014
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