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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MICHAEL LEE RICHTER, :
:
Appellant : Nos. 299, 302, 303 WDA 2015
Appeal from the PCRA Order Entered October 23, 2013
in the Court of Common Pleas of Fayette County
Criminal Division at Nos.: CP-26-CR-0000466-2010,
CP-26-CR-0000467-2010, CP-26-0000549-2010
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 12, 2015
Michael Lee Richter (Appellant) appeals from the order entered
October 23, 2013, denying his petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we quash the
appeal.
On September 10, 2010, a jury convicted Appellant of two counts of
theft by unlawful taking, three counts of receiving stolen property, and three
counts of criminal conspiracy to commit theft by unlawful taking. On
September 21, 2010, the trial court sentenced Appellant to serve an
aggregate term of four and one-half to nine years of imprisonment.
Appellant timely filed a direct appeal to this Court, which affirmed
Appellant’s judgment of sentence on December 20, 2011. Commonwealth
v. Richter, 40 A.3d 198-99 (Pa. Super. 2011) (unpublished memorandum).
* Retired Senior Judge assigned to the Superior Court.
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Appellant did not seek allowance of appeal with our Supreme Court.
On October 31, 2012, Appellant timely filed his first pro se PCRA
petition. The PCRA court appointed Dianne Zerega, Esquire to represent
Appellant. Attorney Zerega subsequently filed an amended PCRA petition,
which, following a hearing, was denied by the PCRA court on October 23,
2013. Appellant did not file a notice of appeal to this Court within thirty
days of the entry of that order.
On July 21, 2014, Appellant filed a second pro se PCRA petition. New
counsel—James Natale, Esquire—was then appointed by the PCRA court.
Appellant, through Attorney Natale, filed an amended PCRA petition,
essentially alleging that his previous PCRA counsel, Attorney Zerega, was
per se ineffective. Specifically, the amended petition states: “Attorney
Zerega failed to notify [Appellant] that his first PCRA Petition had been
denied within the thirty (30) day period for an appeal, and as a result
[Appellant] did not have an opportunity to appeal the Court’s [October 23,
2013] decision.” Amended PCRA Petition, 11/24/2014, at 2 (pages
unnumbered). Appellant requested that he be permitted to appeal the
October 23, 2013 order.
On February 9, 2015, following a hearing on the second PCRA petition,
the PCRA court granted Appellant leave nunc pro tunc to appeal the October
23, 2013 order. On February 20, 2015, Appellant filed a notice of appeal to
this Court.
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On appeal, Appellant presents the following questions for our
consideration:
1. Whether the PCRA court erred by not finding trial counsel
Jeremy Davis, Esq., ineffective for failing to object to the
admission of a co-defendant’s, Courtney Beth Kuhn’s,
statement when said co-defendant was not called as a
witness at trial?
2. Whether the PCRA court erred by not finding that the
prosecutor, Michelle L. Kelley, Esq., committed prosecutorial
misconduct when she intentionally introduced evidence as to
the content of the co-defendant’s, Courtney Beth Kuhn’s,
statement and elicited information from … [Trooper]
Marchewka knowing that the co-defendant would not testify
at trial?
3. Whether the PCRA court erred by not finding trial counsel
Jeremy Davis, Esq., ineffective for failing to file a motion to
suppress the introduction of the shoe prints?
4. Whether the trial court erred by not finding trial counsel,
Jeremy Davis, Esq., ineffective for failing to inspect the
evidence regarding the pictures of the shoe prints and his
shoes, within sufficient time to form a defense?
Appellant’s Brief at 3.
Before we address Appellant’s issues, we must first determine whether
the PCRA court had jurisdiction to entertain the merits of Appellant’s second
PCRA petition. The PCRA court denied Appellant’s first PCRA petition on
October 23, 2013. In order to appeal that order in a timely fashion,
Appellant had to file a notice of appeal within 30 days of the entry of the
order. Pa.R.A.P. 903(a). Appellant failed to do so.
However, as we noted above, on July 21, 2014, Appellant pro se filed
a second PCRA petition, claiming that Attorney Zerega was ineffective and
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seeking leave to appeal the October 23, 2013 order nunc pro tunc. See
Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002)
(“[Fairiror’s] January 8, 2001 petition for reinstatement of PCRA appellate
rights nunc pro tunc must be considered a second [] PCRA petition.”). The
question then becomes whether Appellant timely filed the petition to
reinstate his right to appeal the order denying his first PCRA petition. See
id. (“Although [Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001)] and
[Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999),] dealt with the
restoration of direct appeal rights, these cases teach that all requests for
reinstatement of appellate rights, including PCRA appellate rights, must
meet the timeliness requirements of the PCRA.”).
Under the PCRA, all petitions must be filed within one year of the date
that the petitioner’s judgment became final, unless one of three statutory
exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,
895 A.2d 520, 522 (Pa. 2006). For purposes of the PCRA, a judgment
becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).
“The PCRA’s time restrictions are jurisdictional in nature.” Chester, 895
A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor
the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.’”
Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).
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Instantly, Appellant was sentenced on September 21, 2010. This
Court affirmed the judgment of sentence on December 20, 2011; thus,
because Appellant did not seek allowance of appeal, the judgment became
final thirty days later, on January 19, 2012. See 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 1113(a). Accordingly, Appellant had until January 19, 2013, to file
timely a PCRA petition. Appellant filed his second PCRA petition on July 21,
2014. Thus, his petition is patently untimely, and he had the burden of
pleading and proving one of the following exceptions:
(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).
Appellant’s second PCRA petition did not allege any of the statutory
exceptions to the PCRA’s one year time bar. Appellant, therefore, untimely
filed his second PCRA petition, and the PCRA court was without jurisdiction
to restore Appellant’s PCRA appeal rights nunc pro tunc, rendering his notice
of appeal untimely-filed. Accordingly, we conclude that we are without
jurisdiction, and we quash this appeal.
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Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2015
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