J-S57019-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARIO LOUIS DUNCAN,
Appellant No. 1772 WDA 2015
Appeal from the PCRA Order September 22, 2015
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000601-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 15, 2016
Appellant, Mario Louis Duncan, appeals pro se from the order denying
his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
In a criminal information filed on September 21, 2012, Appellant was
charged with two counts of aggravated assault and one count each of
delivery of controlled substance, possession of drug paraphernalia,
tampering with or fabricating physical evidence, and escape. Appellant
entered a guilty plea to one count of aggravated assault, and the
Commonwealth agreed to nol pros the remaining charges. On May 9, 2013,
the trial court sentenced Appellant to a term of twenty-seven to fifty-four
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S57019-16
months of incarceration in a state correctional institution. Appellant did not
file a direct appeal.
On July 10, 2013, Appellant filed a timely first PCRA petition, which the
PCRA court denied on December 3, 2013. Appellant filed a timely appeal to
this Court, and we affirmed the PCRA court’s order. Commonwealth v.
Duncan, 107 A.3d 219, 38 WDA 2014 (Pa. Super. filed September 4, 2014)
(unpublished memorandum). Appellant’s petition for allowance of appeal to
the Supreme Court was subsequently denied, Commonwealth v. Duncan,
109 A.3d 678, 454 WAL 2014 (Pa. filed February 4, 2015), and Appellant did
not pursue a writ of certiorari in the United States Supreme Court.
Appellant filed his second PCRA petition, which underlies the instant
appeal, on August 24, 2015. On September 2, 2015, the PCRA court
provided Appellant with notice of its intent to dismiss the PCRA petition
without a hearing pursuant to Pa.R.Crim.P. 907. The Rule 907 notice also
informed Appellant that the basis for the denial of his PCRA petition was that
it was untimely. On September 17, 2015, Appellant filed a motion seeking
an extension of time in which to respond to the proposed dismissal, and in
an order filed on September 22, 2015, the PCRA court denied Appellant’s
request for an extension of time. In a separate order filed on September 22,
2015, the PCRA court dismissed Appellant’s PCRA petition. This timely
appeal followed.
-2-
J-S57019-16
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc)). 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).
However, before we may address any issues Appellant purports to
raise on appeal, we must first determine whether the underlying PCRA
petition was timely. We note that any PCRA petition, including a second or
subsequent petition, must be filed within one year from the date that
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). The
timeliness requirements of the PCRA are mandatory and jurisdictional in
nature, and no court may disregard them in order to reach the merits of the
claims raised in a PCRA petition that is filed in an untimely manner.
Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007). “A
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
-3-
J-S57019-16
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3).
Accordingly, as Appellant was sentenced on May 9, 2013, and because
he did not file a direct appeal, his judgment of sentence became final thirty
days later on June 9, 2013. Pa.R.A.P. 903; 42 Pa.C.S. § 9545(b)(3).
Therefore, in order for Appellant to file a timely first or subsequent PCRA
petition, it needed to be filed on or before June 9, 2014. 42 Pa.C.S. §
9545(b)(1). Thus, the instant PCRA petition, which Appellant filed on August
24, 2015, was patently untimely.
Nevertheless, an untimely petition may be received when the petition
alleges, and the petitioner proves, that one of three limited exceptions to the
time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.1 A petition invoking one of these exceptions must be filed
____________________________________________
1
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
(Footnote Continued Next Page)
-4-
J-S57019-16
within sixty days of the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2).
Here, however, Appellant has failed to satisfy this burden. Indeed,
Appellant presented no argument that any of the aforementioned exceptions
to the timing requirements of the PCRA apply.2
Accordingly, Appellant’s August 24, 2015 PCRA petition was untimely,
and because no exceptions applied, the PCRA court lacked jurisdiction to
address the claims presented. 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
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(“[J]urisdictional time limits go to a court’s right or competency to adjudicate
a controversy.”). Therefore, we affirm the PCRA court’s September 22, 2015
order denying Appellant’s petition.
Order affirmed.
_______________________
(Footnote Continued)
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
2
While Appellant cited 42 Pa.C.S. § 9545(b)(1)(ii), Appellant’s Brief at 15,
he failed to provide any argument as to how he has satisfied an exception to
the PCRA filing requirements.
-5-
J-S57019-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2016
-6-
Com. v. Duncan, M.
Combined Opinion