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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DONALD RICHARD MESSINA, :
:
Appellant : No. 1096 WDA 2015
Appeal from the Order June 22, 2015
in the Court of Common Pleas of Clarion County,
Criminal Division, No(s): CP-16-CR-0000528-2004
BEFORE: STABILE, DUBOW and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 29, 2016
Donald Richard Messina (“Messina”) appeals, pro se, from the Order
dismissing his “Petition for County Habeas Corpus.”1 We affirm.
In 2004, Messina, age 49, was arrested and charged with having
sexual intercourse with, and impregnating, a fourteen-year-old girl. In April
2005, following a jury trial, Messina was convicted of four counts of
statutory sexual assault and one count of corruption of a minor. On June
15, 2005, the trial court sentenced Messina to an aggregate prison term of
1
Any petition filed after the judgment of sentence has become final will be
treated as a petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), codified at 42 Pa.C.S.A. §§ 9541-9546. See Commonwealth v.
Jackson, 30 A.3d 516, 521 (Pa. Super. 2010). The PCRA is the sole means
of obtaining collateral relief, and subsumes all other remedies, including
habeas corpus. Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013);
42 Pa.C.S.A. § 9542. Thus, the claims raised in Messina’s “Petition for
County Habeas Corpus” fall within the scope of the PCRA and, hence, his
Petition is treated as a Petition for relief under the PCRA. See 42 Pa.C.S.A.
§ 9543(a)(2).
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77 months to 144 months, followed by five years of probation.2 Messina’s
judgment of sentence was affirmed on August 28, 2006. See
Commonwealth v. Messina, 909 A.2d 884 (Pa. Super. 2006) (unpublished
memorandum). Messina did not seek review by the Pennsylvania Supreme
Court.
On June 15, 2015, Messina filed the instant Petition, his fifth Petition
for relief under the PCRA. The PCRA court dismissed the Petition on June
22, 2015. Messina filed a timely Notice of Appeal on July 2, 2015.
On appeal, Messina raises the following issues for our review:
1. Was the trial [j]udge bias [sic] all through the trial?
2. Did the prosecutor commit prosecutorial misconduct in telling
the jury that [Messina] was guilty?
Brief for Appellant at 5 (unnumbered).3
We review an order dismissing a petition under the PCRA
in the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of record. We will not disturb a PCRA court’s
ruling if it is supported by evidence of record and is free of legal
error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
2
Our review of the docket reveals that, since his trial, Messina has filed pro
se, inter alia, more than 70 motions and petitions, several complaints, and
numerous appeals to this Court. Many of Messina’s pro se filings were made
while he was still represented by counsel.
3
We note that Messina’s brief does not conform to the Pennsylvania Rules of
Appellate Procedure that govern the form and content of an appellate brief.
See Pa.R.A.P. 2101, 2111-2133.
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Under the PCRA, any PCRA petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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 the review.” Id. § 9545(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
not address the merits of the issues raised if the PCRA petition was not
timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010).
Here, Messina’s judgment of sentence became final on September 27,
2006, when the period of time to file an appeal with our Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3); Commonwealth v. Rojas, 874
A.2d 638, 643 (Pa. Super. 2005). Messina had until September 27, 2007, to
file the instant PCRA Petition, but did not do so until June 15, 2015. Thus,
Messina’s instant Petition is facially untimely under the PCRA.
Pennsylvania courts may consider an untimely PCRA petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
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Here, Messina has failed to plead or prove the applicability of any of
the exceptions to the PCRA timeliness requirements. See 42 Pa.C.S.A.
§ 9545(b)(1); Albrecht, 994 A.2d at 1094. Thus, Messina has failed to
overcome the untimeliness of his Petition. Accordingly, we discern no error
by the PCRA court in dismissing Messina’s fifth PCRA Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/29/2016
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