J-S31012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MIGUEL ANGEL LANDRAU-MELENDEZ,
Appellee No. 1684 MDA 2015
Appeal from the PCRA Order August 31, 2015
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000309-2010
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2016
This is an appeal by the Commonwealth of Pennsylvania from an order
of the Lebanon County Court of Common Pleas granting Appellee, Miguel
Angel Landrau-Melendez, relief pursuant to Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546, in the form of reinstatement of his
right to file a petition for allowance of appeal nunc pro tunc to the
Pennsylvania Supreme Court. We reverse the grant of PCRA relief because,
due to the untimeliness of Appellee’s third PCRA petition, the PCRA court
lacked jurisdiction to address it.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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In a prior PCRA appeal, we summarized the early procedural history of
the case as follows:
In 2010, Appellee was charged with numerous
sexually-related offenses stemming from incidents
involving two sisters that occurred between
November 1, 2009 and February 3, 2010. During
the pendency of the charges, Appellee hired Attorney
John Kelsey, Esquire (Attorney Kelsey) to represent
him. After pretrial maneuvering, Appellee’s case was
ultimately scheduled for a trial the October 2010
term of criminal court.
A jury was scheduled to be selected in
Appellee’s case on October 4, 2010. Immediately
before jury selection, both counsel asked to meet
with the trial court in chambers. This meeting was
not recorded, and a difference of opinion now exists
with respect to what occurred at it. Attorney Kelsey
testified at Appellee’s PCRA hearing that the trial
court promised that he would not impose a sentence
that exceeded a one-year minimum. This did not at
all comport with the recollection of the trial court.
According to testimony at the PCRA hearing,
Attorney Kelsey returned to Appellee following the
meeting in chambers. Attorney Kelsey then led
Appellee to believe that the trial court would impose
a one-year minimum sentence. Attorney Kelsey
even advised Appellee that there was a possibility
that the sentence could be served in the Lebanon
County Correctional Facility instead of a state
correctional facility when in fact there was no
realistic possibility that a local sentence would ever
be imposed.
Appellee decided to enter a plea of guilty.
During the guilty plea colloquy, the trial court
emphasized that the plea was an open one and that
Appellee could be sentenced to anything up to the
maximum penalty permitted by law. In addition, the
trial court reminded Appellee that he was entering a
plea of guilty on the first day of a scheduled jury
trial. Because of the prejudice that would be created
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to the Commonwealth and its witnesses that would
flow from renewed preparation and trial at a later
date, Appellee was advised up front that a plea
withdrawal at a later date would be extremely
unlikely to occur. Effectively, Appellee was advised
that his decision to plead guilty would be a final
decision. Despite knowing this, Appellee proceeded
to proffer his open plea of guilty.
Several days following the plea, Appellee
contacted Attorney Kelsey in order to request that a
motion to withdraw his guilty plea be filed. Attorney
Kelsey acknowledged that Appellee had requested to
withdraw his plea.[1] Attorney Kelsey reminded
Appellee of the colloquy conducted in court with the
trial court. Attorney Kelsey indicated to Appellee
that he would not be permitted to withdraw his plea
of guilty. Therefore, no motion to withdraw the
guilty plea was filed.
Following Megan’s Law litigation, Appellee was
directed to appear for sentencing. At Appellee’s
sentencing date, he requested permission to
withdraw his plea of guilty. The trial court afforded
the Commonwealth time to discern whether it would
suffer prejudice as a result of Appellee’s withdrawal
of this plea. On June 27, 2011, the trial court
conducted a hearing. For multiple reasons, the trial
court determined that Appellee should not have been
permitted to withdraw his plea of guilty. The trial
court therefore denied Appellee’s request to
withdraw his plea.
PCRA Court Opinion, 6/25/13, at 2–4.
____________________________________________
1
We indicated in Appellee’s direct appeal that he had written a pro se letter
to the court requesting to withdraw his guilty plea. Attorney Kelsey,
however, did not file a motion to withdraw. Commonwealth v. Landrau-
Melendez, 2147 MDA 2011, 55 A.3d 152 (Pa. Super. filed July 31, 2012)
(unpublished memorandum at 2).
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On July 13, 2011, the trial court sentenced Appellee to 18
to 72 months’ imprisonment. Appellee filed a timely notice of
appeal, and this Court affirmed the judgment of sentence on July
31, 2012. Commonwealth v. Landrau-Melendez, [2147 MDA
2011,] 55 A.3d 152 (Pa. Super. [filed July 31,] 2012)
(unpublished memorandum). Appellee did not file a petition for
allowance of appeal with our Supreme Court.
On October 12, 2012, Appellee filed a timely counseled
PCRA petition. The Commonwealth filed its answer on December
3, 2012. The PCRA court conducted a hearing on April 8, 2013.
On April 9, 2013, the PCRA court entered an order granting
Appellee’s petition and ordering a new trial. On May 7, 2013,
the Commonwealth filed a timely notice of appeal.
Commonwealth v. Landrau-Melendez, 842 MDA 2013, 97 A.3d 804 (Pa.
Super. filed February 18, 2014) (unpublished memorandum at 1–4)(footnote
omitted).
On appeal to this Court from the order granting relief, the
Commonwealth argued, inter alia, that the PCRA court erred in concluding
that plea counsel was ineffective for failing to file a timely motion to
withdraw Appellee’s guilty plea. We concluded the PCRA court erred when it
determined that plea counsel was ineffective, because the PCRA court’s
assertions actually demonstrated that it believed there was a reasonable
probability that the outcome would not have been different if plea counsel
had filed a timely written motion. We stated that Appellee failed to prove
prejudice and therefore, did not meet his burden to demonstrate eligibility
for relief under the PCRA. We held that the PCRA court erred when it
granted PCRA relief and ordered a new trial; thus, we reinstated the original
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July 13, 2011 judgment of sentence. Landrau-Melendez, 842 MDA 2013
(unpublished memorandum at 7–8, 13).
The present PCRA court continued the relevant procedural history, as
follows:
(6) On March 30, 2015, [Appellee] filed a second PCRA Petition.
We scheduled a hearing regarding this PCRA Petition for July 23,
2015.
(7) At the July 23, 2015 hearing, the Commonwealth objected
to [Appellee’s] second PCRA [petition] as untimely. We initially
rejected the Commonwealth’s argument based upon testimony
of [Appellee’s] former counsel provided at the July 23, 2015
hearing.[2]
(8) On July 27, 2015, we sua sponte changed our decision
regarding the timeliness of [Appellee’s] second PCRA Petition.
We therefore granted the Commonwealth’s Motion to Dismiss
[Appellee’s] second PCRA Petition. In our [c]ourt [o]rder, we
indicated that if [Appellee] filed a third PCRA Petition, we would
entertain it based upon the factual testimony presented at the
July 23, 2015 court hearing. We included in our [o]rder the
following:
Should the Commonwealth object to the [c]ourt’s
intent to decide the third PCRA based upon
testimony presented at the July 23, 2015 hearing, it
will be required to file an objection to the [c]ourt’s
intent to incorporate testimony by reference within
____________________________________________
2
Prior, first PCRA counsel testified at the July 23, 2015 PCRA hearing
relating to Appellee’s second PCRA petition that she erroneously filed an
untimely petition for allowance of appeal on March 21, 2014, from this
Court’s February 18, 2014 decision that reversed the grant of PCRA relief
and reinstated Appellee’s judgment of sentence in the first PCRA appeal.
N.T., 7/23/15, at 9–11. The petition for allowance of appeal and alleged
quashal order by the Pennsylvania Supreme Court is not in the record
certified to us and is not docketed therein.
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ten days following the date on which [Appellee’s]
third PCRA Petition is filed.[3]
(9) [Appellee] filed a third PCRA Petition on August 10, 2015.
Although the Commonwealth filed a response to that third PCRA
Petition, the Commonwealth never lodged an objection to the
[c]ourt’s declared intent to incorporate by reference the
testimony presented at the July 23, 2015 court hearing.
(10) On August 31, 2015, we issued a [c]ourt [o]rder to grant
[Appellee’s] request to file an [a]ppeal with the Supreme Court
nunc pro tunc.
(11) The Commonwealth filed a timely [a]ppeal of our August
31, 2015 decision. Shortly thereafter, we directed that the
Commonwealth file[] a Statement of Errors Complained of on
Appeal.
(12) On September 29, 2015, the Commonwealth filed a
Statement of Errors Complained of on Appeal. Paragraph 1
alleged that that [Appellee’s] third PCRA Petition should have
been dismissed as untimely.
PCRA Court Opinion, 10/29/15, at 3–4 (footnote omitted).
The Commonwealth raises a single issue for our review: “Whether
[Appellee’s] [p]etition for Post-Conviction Relief is untimely?”
Commonwealth’s Brief at 4. We conclude, for the following reasons, that it
is untimely. Thus, the PCRA court was without jurisdiction to consider the
merits of the petition.
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the record
____________________________________________
3
Appellee did not file an appeal from the PCRA court’s dismissal of his
second PCRA petition as untimely.
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supports the determination of the PCRA court and whether the ruling is free
of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.
2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).
This Court is limited to determining whether the evidence of record supports
the conclusions of the PCRA court and whether the ruling is free of legal
error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012).
We grant great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support in the
certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
2014). “There is no absolute right to an evidentiary hearing on a PCRA
petition, and if the PCRA court can determine from the record that no
genuine issues of material fact exist, then a hearing is not necessary.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
The timeliness of a PCRA petition is a jurisdictional threshold that may
not be disregarded in order to reach the merits of the claims raised in a
PCRA petition that is untimely. Commonwealth v. Murray, 753 A.2d 201,
203 (Pa. 2000). “We have repeatedly stated it is the [petitioner’s] burden to
allege and prove that one of the timeliness exceptions applies. See, e.g.,
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Commonwealth v. Beasley, 741 A.2d 1258, 1261 (1999). Whether [a
petitioner] has carried his burden is a threshold inquiry prior to considering
the merits of any claim.” Commonwealth v. Edmiston, 65 A.3d 339, 346
(Pa. 2013).
In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 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.” 42 Pa.C.S. § 9545(b)(3).
As noted, we affirmed Appellee’s judgment of sentence on July 31,
2012. Our review of the record reflects that Appellee’s judgment of
sentence became final on August 30, 2012, thirty days after the time
expired for Appellee to file a petition for allowance of appeal with the
Pennsylvania Supreme Court. 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113.
Pursuant to the PCRA, Appellant had one year, or until August 30, 2013, in
which to file a timely PCRA petition. Here, Appellee’s third PCRA petition is
patently untimely as it was not filed until August 10, 2015.
Nevertheless, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
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and (iii), is met.4 “That burden necessarily entails an acknowledgment by
the petitioner that the PCRA petition under review is untimely but that one
or more of the exceptions apply.” Beasley, 741 A.2d at 1261. “However,
the PCRA limits the reach of the exceptions by providing that a petition
invoking any of the exceptions must be filed within 60 days of the date the
claim first could have been presented.” Commonwealth v. Walters, ___
A.3d ___, ___, 2016 PA Super 42 at *2 (Pa. Super. 2016) (filed February
19, 2016) (citing Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa.
Super. 2011), and 42 Pa.C.S. § 9545(b)(2)). In order to be entitled to the
exceptions to the PCRA’s one-year filing deadline, “the petitioner must plead
and prove specific facts that demonstrate his claim was raised within the
____________________________________________
4
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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sixty-day time frame” under section 9545(b)(2). Commonwealth v. Carr,
768 A.2d 1164, 1167 (Pa. Super. 2001).
To characterize the instant case as having a “tortured” procedural
path, as did the PCRA court, PCRA Court Opinion, 10/29/15, at 2, is an
understatement. We agree with the Commonwealth that Appellee has failed
to plead and prove any of the enumerated statutory exceptions.
Commonwealth’s Brief at 10. Instead, PCRA counsel merely asserted that
the third PCRA petition was not untimely, or alternatively, that the prior
order of July 27, 2015, holding that the second PCRA petition filed on March
30, 2015, was untimely, was error. PCRA petition, 8/10/15, at ¶ 5. As
noted supra, Appellee never appealed the PCRA court’s decision on July 27,
2015, which concluded that the second PCRA petition was untimely. The
propriety of that order is not before us.
As to Appellee’s explanation regarding the alleged timeliness of the
instant petition, relying upon Pa.R.A.P. 2542 and 42 Pa.C.S. § 9543(b)(3),
counsel avers that the “deadline for filing the PCRA Petition was April 4,
2015,” fourteen days after the time for seeking reconsideration of the
Pennsylvania Supreme Court’s quashal of Appellee’s untimely petition for
allowance of appeal, plus one year. Appellee’s Brief at 3–4. The time
parameters following disposition of Appellee’s first PCRA petition have no
bearing on the finality of his judgment of sentence for purposes of PCRA
eligibility in this case. As we noted supra, Appellee’s judgment of sentence
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became final on August 30, 2012, thirty days after the time expired for
Appellee to file a petition for allowance of appeal with the Pennsylvania
Supreme Court following disposition of his direct appeal. 42 Pa.C.S. §
9545(b)(3); Pa.R.A.P. 1113. Thus, pursuant to the PCRA, Appellant had one
year, or until August 30, 2013, in which to file a timely PCRA petition.
The PCRA court, likewise, also failed to properly analyze the timeliness
of Appellee’s present PCRA petition, filed August 10, 2015. The PCRA court,
similarly to Appellee, failed to utilize the proper dates concerning when the
judgment of sentence became final in this case. The PCRA court stated,
“Looking simply at dates on a calendar, we agree that [Appellee] did not file
his PCRA [petition] prior to its due date of March 19, 2015.” PCRA Court
Opinion, 10/29/15, at 4–5 (emphasis added). While the PCRA court did not
explain its reasoning regarding its belief that March 19, 2015, was the
relevant date, it apparently examined the merits of Appellee’s
ineffectiveness claim5 in rendering its decision. We remind the PCRA court
and Appellee that our Supreme Court has:
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5
In his counseled, third PCRA petition, Appellee asserted that Elizabeth
Judd, Esquire, first PCRA counsel, was ineffective in failing to file a timely
petition for allowance of appeal to the Pennsylvania Supreme Court following
our decision on February 18, 2014, reversing the grant of a new trial and
reinstating the original July 13, 2011 judgment of sentence. Additionally,
Appellee asserted Ms. Judd’s ineffective assistance in advising Appellee in a
letter dated March 27, 2014, that a second PCRA petition had to be filed by
April 19, 2015. Landrau-Melendez, 842 MDA 2013, (unpublished
memorandum at 13); PCRA petition, 8/10/15, at ¶ 3 (a), (b); N.T., 7/23/15,
(Footnote Continued Next Page)
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previously rejected attempts to circumvent the timeliness
requirements of the PCRA by asserting prior counsel’s
ineffectiveness for failing timely to raise a claim. See
Commonwealth v. Lesko, 609 Pa. 128, 15 A.3d 345, 367
(2011) (“[I]t is well established that the fact that a petitioner’s
claims are couched in terms of ineffectiveness will not save an
otherwise untimely petition from the application of the time
restrictions of the PCRA.”); Commonwealth v. Crews, 581 Pa.
45, 863 A.2d 498, 503 (2004); Commonwealth v. Abu–
Jamal, 574 Pa. 724, 833 A.2d 719, 723 (2003);
Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 97
(2001); Beasley, 559 Pa. 604, 741 A.2d 1258. As we have
explained, the nature of the constitutional violations alleged has
no effect on the application of the PCRA time bar.
Commonwealth v. Wharton, 584 Pa. 576, 886 A.2d 1120,
1126–27 (2005) (rejecting the claim that the time-bar should
not apply to a second petition because the underlying claim
involved a constitutional right, holding that “this is nothing more
than a convoluted way of attempting to carve out an exception
to the jurisdictional timeliness requirements of the PCRA for
ineffective assistance of counsel claims”); Commonwealth v.
Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000). Rather, the only
cognizable exceptions are set forth at Section 9545(b)(1).
Edmiston, 65 A.3d at 349. Moreover, it appears the PCRA court was
referencing the filing date of the second PCRA petition on March 30, 2015,
which the PCRA court previously held was untimely filed. Once again, we
note that Appellee did not appeal that order.6
_______________________
(Footnote Continued)
at 9–11. In his pro se second PCRA petition, Appellee asserted Ms. Judd was
ineffective for failing to file a timely petition for allowance of appeal following
our February 18, 2014 decision. PCRA petition, 3/30/15, at ¶ 5(C).
6
Despite finding that the March 30, 2015 PCRA petition was untimely on
July 27, 2015, from which no appeal was filed, the PCRA court, in its August
31, 2015 order granting Appellee’s third, and instant PCRA petition, also
“granted” Appellee’s second PCRA petition that it previously dismissed as
untimely. This was error as well.
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Even if we overlooked the fact that the PCRA court designated the
wrong date concerning when the judgment of sentence became final in this
case, its belief that Appellee met the exception outlined in 42 Pa.C.S. §
9545(b)(1)(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,” also is incorrect. We recently explained the exception in section
9545(b)(1)(ii) requires a PCRA petitioner:
to demonstrate he did not know the facts upon which he based
his petition and could not have learned those facts earlier by the
exercise of due diligence. Commonwealth v. Bennett, 593 Pa.
382, 395, 930 A.2d 1264, 1271 (2007). Due diligence demands
that the petitioner take reasonable steps to protect his own
interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.
Super. 2001). A petitioner must explain why he could not have
learned the new fact(s) earlier with the exercise of due diligence.
Commonwealth v. Breakiron, 566 Pa. 323, 330–31, 781 A.2d
94, 98 (2001); Commonwealth v. Monaco, 996 A.2d 1076,
1080 (Pa. Super. 2010), appeal denied, 610 Pa. 607, 20 A.3d
1210 (2011). This rule is strictly enforced. Id.
Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015), appeal
denied, 125 A.3d 1197 (Pa. 2015).
The PCRA court, relying upon Commonwealth v. Bennett, 930 A.2d
1264 (Pa. Super. 2007), determined as follows:
In this case, Attorney Elizabeth Judd provided testimony at
a hearing that occurred on July 23, 2015. Attorney Judd
testified that she repeatedly advised [Appellee] that his deadline
for requesting post-conviction relief would be April 19, 2015.
(N.T. 13-15). This was incorrect advice; [Appellee’s] actual
deadline was March 19, 2015. When [Appellee] filed his PCRA
Petition on March 30, 2015, he was within the time deadline
communicated to him by Attorney Judd, but he had missed the
statutory deadline of March 19, 2015.
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PCRA Court Opinion, 10/29/15, at 6.
Referencing 42 Pa.C.S. § 9545(b)(1)(ii) and § 9545(b)(2), this Court
reiterated:
Section 9545(b)(1)(ii) of the PCRA provides that a PCRA petition
must be filed within one year of the date on which the judgment
of sentence became final, unless the petitioner alleges and
proves that “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.” 42 Pa.C.S. § 9545(b)(1)(ii).
If the petitioner so alleges and proves, the petition will not be
dismissed as untimely if it was “filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Commonwealth v. Huddleston, 55 A.3d 1217, 1220 (Pa. Super. 2012).
Attorney Judd testified at the July 23, 2015 hearing that she wrote Appellee
a letter dated March 27, 2014, informing him that she had missed the
deadline to file a petition for allowance of appeal from this Court’s February
18, 2014 decision. N.T., 7/23/15, at 12. Moreover, Attorney Judd testified
that she contacted Appellee by telephone on September 19, 2014, and she
“explained my mistake and kind of went through everything that was
outlined in the letter.” Id. at 13. Thus, at the latest, Appellee was made
aware of Attorney Judd’s failure to file a petition for allowance of appeal on
September 19, 2014. Sixty days from that date was Tuesday, November
18, 2014. Appellee did not file his second PCRA petition until March 30,
2015, and his third petition until August 10, 2015.
Because the instant PCRA petition was untimely and no exceptions
were pled or proven, the PCRA court lacked jurisdiction to address the merits
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and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.
Super. 2002) (holding that PCRA court lacks jurisdiction to hear untimely
petition). Likewise, we lack the authority to address the merits of any
substantive claims raised in the PCRA petition. See Bennett, 930 A.2d at
1267 (“[J]urisdictional time limits go to a court’s right or competency to
adjudicate a controversy.”). Therefore, we reverse the August 31, 2015
order and conclude the Lebanon County Common Pleas Court lacked
jurisdiction to address the merits of Appellee’s third PCRA petition.
Order reversed. Jurisdiction relinquished.
Judge Strassburger joins this Memorandum.
Judge Ott files a Concurring Statement in which Judge Strassburger
joins.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2016
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