J-S13010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONNY WESTERFIELD,
Appellant No. 1719 WDA 2014
Appeal from the PCRA Order Entered December 13, 2012
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001990-2007
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 03, 2015
Appellant, Ronny Westerfield, appeals pro se from the post-conviction
court’s December 13, 2012 order denying as untimely his second petition for
relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. We affirm.
In May of 2008, a jury convicted Appellant of involuntary deviate
sexual intercourse with a child and related charges. On November 4, 2008,
he was sentenced to an aggregate term of 16 to 32 years’ incarceration. He
filed a timely appeal with this Court. After we affirmed his judgment of
sentence, our Supreme Court denied his subsequent petition for allowance of
appeal on February 24, 2010. Commonwealth v. Westerfield, 981 A.2d
325 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 989
A.2d 917 (Pa. 2010). Appellant did not seek further review with the
J-S13010-15
Supreme Court of the United States and, thus, his judgment of sentence
became final on May 26, 2010. See 42 Pa.C.S. § 9545(b)(3) (stating that a
judgment of sentence becomes final at the conclusion of direct review or the
expiration of the time for seeking the review); Commonwealth v. Owens,
718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,
petitioner’s judgment of sentence becomes final ninety days after our
Supreme Court rejects his or her petition for allowance of appeal since
petitioner had ninety additional days to seek review with the United States
Supreme Court).
Appellant filed a timely pro se PCRA petition on September 20, 2010,
and counsel was appointed. On May 17, 2011, the PCRA court dismissed
Appellant’s petition without a hearing. He filed a timely notice of appeal,
and on March 9, 2012, we affirmed the order denying Appellant PCRA relief.
Commonwealth v. Westerfield, 47 A.3d 1240 (Pa. Super. 2012)
(unpublished memorandum). Appellant did not file a petition for allowance
of appeal with our Supreme Court.
On November 7, 2012, Appellant filed his second pro se PCRA petition,
which underlies the present appeal. Therein, he alleged the following three
claims:
I. A violation of [p]rocedural [d]ue [p]rocess [r]esulting in an
[i]llegal [s]entence was a miscarriage of [j]ustice;
II. The [p]ublic [d]efender’s [o]ffice [c]omitted [f]raud on the
[c]ourt [r]esulting in a [m]iscarriage of [j]ustice;
-2-
J-S13010-15
III. The [c]ourt [l]acked [s]ubject [m]atter [j]urisdiction
[b]ecause [] [Appellant] was never [g]iven [f]ormal [n]otice of
the [c]harges[.]
PCRA Petition, 11/7/12, at 3.
On November 27, 2012, the PCRA court issued Pa.R.Crim.P. 907 notice
of its intent to dismiss Appellant’s petition without a hearing, reasoning that
the petition is untimely. Appellant filed a timely pro se response, contending
that the procedural history set forth in the “Memorandum” accompanying his
PCRA petition “shows, in full detail, the timeliness of the petition as well as
[his] assertion that it was timely filed.” Appellant’s Response to Rule 907
Notice, 12/14/12, at 2 (unnumbered). On December 13, 2012, the PCRA
court issued an order dismissing Appellant’s petition.1 Appellant filed a
timely notice of appeal.
On January 10, 2013, the PCRA court issued an order directing
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal within 21 days. Appellant filed a Rule 1925(b) statement,
which was time-stamped by the Clerk of Courts of Fayette County as being
received on February 8, 2013. While Appellant handwrote the date of
____________________________________________
1
We note that while the PCRA court’s Rule 907 notice properly stated that
Appellant had 20 days to respond, the court erroneously filed its order
dismissing Appellant’s petition after only 16 days. Indeed, the court issued
the order dismissing Appellant’s petition before Appellant filed his timely, pro
se response to the Rule 907 notice, thus evincing that the court did not
consider that filing. While we acknowledge this error by the PCRA court,
Appellant does not raise any challenge thereto on appeal. Thus, we
conclude that any claim involving this error is waived. See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
-3-
J-S13010-15
January 24, 2013, on that document, he did not include “any reasonably
verifiable evidence” of the date that he deposited his Rule 1925(b)
statement with the prison authorities or placed it in a prison mailbox. 2 See
Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998) (stating
that under the ‘prisoner mailbox rule,’ pro se documents will “be deemed
filed on the date that the prisoner deposits the appeal with prison
authorities, or places it in a prison mailbox[,]" provided that the inmate
presents “reasonably verifiable evidence” of the date on which he did so)
(citing Jones, 700 A.2d at 426). Therefore, we are constrained to deem
Appellant’s Rule 1925(b) statement as untimely, and consider all of his
issues waived. See Commonwealth v. Myers, 86 A.3d 286, 289 (Pa.
Super. 2014) (stating “it is clear that, whatever else we may do, we may not
consider the merits of an appeal when the Rule 1925 statement was
untimely filed”) (citing Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005)).
____________________________________________
2
In Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997), our Supreme
Court indicated that “the type of evidence a pro se prisoner may present to
prove that he mailed the [document] within the deadline” can include “a
Postal Form 3817, Certificate of Mailing[,]” or a “Cash Slip” from “prison
authorities … noting both the deduction from [the inmate’s] account for the
mailing to the prothonotary and the date of the mailing….” The Jones Court
also stated that “an affidavit attesting to the date of deposit with the prison
officials likewise could be considered.” Id. Appellant did not attach any
such documents to his Rule 1925(b) statement in the present case.
-4-
J-S13010-15
Nevertheless, for the reasons that follow, even if Appellant had not
waived his issues, we would agree with the PCRA court that his petition is
untimely and, thus, we do not have jurisdiction to review the merits of his
claims. Initially, we note that 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).
As both this Court and our Supreme Court have stated, the PCRA’s
time limitations implicate the appellate court’s 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);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002).
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 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:
-5-
J-S13010-15
(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 May 26, 2010,
and thus, he had until May 26, 2011, to file a timely petition. Consequently,
Appellant’s petition filed on November 7, 2012, is patently untimely and, for
this Court to have jurisdiction to review the merits thereof, he must prove
that he meets one of the exceptions to the timeliness requirements set forth
in 42 Pa.C.S. § 9545(b).
Appellant has failed to do so. The majority of his brief is devoted to
arguing that he suffered a ‘miscarriage of justice’ warranting PCRA relief,
and/or that he presented ‘issues of material fact’ necessitating a PCRA
hearing. However, Appellant fails to recognize that neither the PCRA court,
nor this Court, have jurisdiction to assess whether his claim(s) demonstrate
a miscarriage of justice, or present questions of material fact, unless he
-6-
J-S13010-15
proves that his untimely petition satisfies an exception set forth in section
9545(b)(1)(i)-(iii). Appellant makes no attempt to allege the applicability of
any of those exceptions. Instead, he argues that in calculating the one-year
time-frame within which he had to file a timely petition, we are required to
exclude the time during which his first PCRA petition was pending. In other
words, Appellant claims that we should not count the time from September
20, 2010 (the date he filed his first PCRA petition), through April 8, 2012
(the date the judgment dismissing that petition became final) in assessing
whether Appellant filed his current petition within one year of the date on
which his judgment of sentence became final.
Initially, our review of Appellant’s pro se PCRA petition, as well as the
“Memorandum” accompanying it, reveals that Appellant did not raise this
claim before the PCRA court. Therefore, it is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”); Commonwealth v. Rainey, 928 A.2d 215, 226
(Pa. 2007) (holding that claims not raised in the PCRA petition are waived).
In any event, we would conclude that Appellant’s argument is meritless,
even had he preserved it for our review. The plain language of section 9545
states 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. § 9545(b)(1). We have always interpreted this
language as requiring that any PCRA petition be filed within one year of the
date on which the petitioner’s judgment of sentence became final. In
-7-
J-S13010-15
calculating the timeliness of second or subsequent petitions, neither this
Court, nor our Supreme Court, have ever excluded the time during which the
petitioner’s first PCRA petition was pending. Accordingly, even had Appellant
preserved this argument below, we would reject that his PCRA petition is
timely under this novel theory.
In sum, because Appellant filed an untimely Rule 1925(b) statement,
he did not preserve any of his claims for our review. Moreover, Appellant
has failed to plead and prove the applicability of any exception to the PCRA’s
timeliness requirement. Therefore, even had Appellant timely filed his Rule
1925(b) statement, we would conclude that the PCRA court did not err in
denying his untimely petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2015
-8-