J-S48011-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD ALAN DELP, SR.
Appellant No. 1225 WDA 2015
Appeal from the PCRA Order July 27, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000105-1999
CP-03-CR-0000106-1999
CP-03-CR-0000107-1999
CP-03-CR-0000108-1999
CP-03-CR-0000712-1998
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED JUNE 24, 2016
Richard Alan Delp, Sr., appeals from the order entered July 27, 2015,
dismissing his PCRA petition as untimely. We affirm.
This Court previously summarized the relevant history.
In 2001, [Appellant] was convicted of [eight counts of
involuntary sexual intercourse, four counts of aggravated
indecent assault, four counts of indecent assault, two counts of
terroristic threats, three counts of corruption of minors, and two
counts of rape] and sentenced to 60 to 144 years of
incarceration. This Court affirmed his judgment of sentence in
March 2002 and the Pennsylvania Supreme court denied his
petition for allowance of appeal in January 2004.
No further action occurred until June 2008, when [Appellant]
filed a petition pro se with the trial court, in which he argued
that the trial court erred in imposing his sentence because it
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failed to merge certain offenses. Motion to Modify and Reduce
Sentence, 6/19/08. Recognizing that this claim challenges the
legality of [Appellant’s] sentence, the trial court treated the filing
as a PCRA petition and issued a Pa.R.Crim.P. 907 notice of intent
to dismiss based upon its conclusion that the petition was
untimely. [Appellant] filed a pro se response to the Rule 907
notice, claiming that his trial counsel failed to communicate with
him and that he did not discover until May 2008 that his direct
appeal efforts had concluded. On November 10, 2008, the trial
court dismissed [Appellant’s] petition. In the memorandum filed
contemporaneously with the dismissal, the trial court explained
that [Appellant’s] petition was untimely, that “it is obvious that
none of the exceptions [to the PCRA's timeliness requirements]
is even remotely applicable,” and that [Appellant] failed to
“assert due diligence in discovering the denial of his appeals.”
Trial Court Opinion, 11/10/08, at 3; Addendum to Memorandum
and Order, 11/10/08, at 1.
Commonwealth v. Delp, 108 A.3d 117 (Pa.Super. 2014) (unpublished
memoranda at 1-2). We vacated the trial court’s order denying Appellant’s
first petition and remanded the case for the appointment of PCRA counsel
and the filing of a counseled petition. Counsel was appointed, and he filed
an amended petition.
After conducting a hearing on the matter, the trial court again
dismissed the PCRA petition as untimely on November 27, 2015. This timely
appeal followed. Appellant presents one issue for our consideration.
I. Where a Defendant’s Court Appointed trial counsel abandons
the defendant by way of failing to communicate with the
defendant after sentencing such that the defendant has no
knowledge regarding whether any appeals have been filed
on his behalf or the status of any such appeals, and the lack
of such knowledge causes the defendant to not know the
time frame within which he must file a timely PCRA petition,
did the PCRA court err in denying defendant’s PCRA petition
as untimely?
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Appellant’s brief at 7.
We note preliminarily that an untimely PCRA petition renders
Pennsylvania courts without jurisdiction to afford relief. Commonwealth v.
Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). “The question of whether a
petition is timely raises a question of law. Where the petitioner raises
questions of law, our standard of review is de novo and our scope of review
plenary.” Id. (citations omitted).
The PCRA specifies that all PCRA petitions must be filed within one
year of the date on which the judgment of sentence became final, unless
one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.
The petitioner bears the burden to plead and prove that a statutory
exception applies. If the petition is found to be untimely, and the petitioner
has not pled and proven an exception, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d
516, 519 (Pa.Super. 2011) (citation omitted).
Title 42 Pa.C.S. § 9545 (b)(1) and (2) provide:
(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 of sentence
becomes final, unless the petition alleges and the
petitioner proves that:
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(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1) and (2).
Instantly, Appellant’s petition for allowance of appeal to the
Pennsylvania Supreme Court was denied by order on January 22, 2004.
Thus, his judgment of sentence became final on April 22, 2004, following the
expiration of his ninety-day allowance to petition the United States Supreme
Court for review. Appellant had until April 22, 2005 to file a timely PCRA
petition. However, Appellant filed his PCRA petition on June 19, 2008,
rendering his petition facially untimely unless he pleads and proves one of
the three statutory exceptions detailed above. Appellant has not raised a
claim of government interference or a newly recognized constitutional right,
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but rather relies solely on the fact that Appellant was not told about the
conclusion of his direct appeal by prior counsel.
Specifically, Appellant asserts that appellate counsel abandoned him
by failing to communicate with him during the appeal process. Appellant’s
brief at 14. Relying on this Court’s decision in Commonwealth v. Bennett,
930 A.2d 1264 (Pa. 2007), Appellant maintains that attorney abandonment
constitutes a factual basis for the exception outlined in § 9545(b)(1)(ii).
Appellant’s brief at 13. Appellant acknowledges he became aware the status
of his direct appeal through correspondence with the trial court received
March 18, 2008. Id. at 14. Pursuant to Pa.C.S. § 9545(b)(2), Appellant
had until May 19, 2008 to invoke this exception to the statutory timebar.1
As he filed his PCRA petition on June 19, 2008,2 he cannot satisfy the
threshold requirement of § 9545(b)(2).
Thus, the PCRA court properly concluded that the petition was
untimely.
Order affirmed.
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1
We observe that since the sixty day time period enumerated in 42 Pa.C.S.
§ 9545(b)(2) following Appellant’s discovery of prior counsel’s actions falls
on Saturday, May 17, 2008, Appellant had until Monday, May 19, 2008 to
file his PCRA petition. See 1 Pa.C.S. § 1908.
2
Appellant does not assert that the prisoner mailbox rule rendered this
petition timely.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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