J-S45029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GREGORY JAMES MUSHAT,
Appellant No. 1794 WDA 2015
Appeal from the PCRA Order of October 14, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000015-2004
BEFORE: OLSON, DUBOW AND PLATT,* JJ.
CONCURRING AND DISSENTING STATEMENT BY OLSON, J.:
FILED OCTOBER 28, 2016
I agree with the learned Majority that Appellant’s “Permission to En
Banc Post Conviction Collateral Relief” filing was a petition filed pursuant to
the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. I also
agree with the learned Majority that the PCRA court erred by failing to
appoint counsel to litigate Appellant’s first PCRA petition and we lack
jurisdiction over the order dismissing Appellant’s first PCRA petition. I
disagree, however, with the learned Majority’s conclusion that we have
jurisdiction to require the PCRA court to appoint counsel to litigate this,
Appellant’s second, PCRA petition. Therefore, I respectfully concur in part
and dissent in part.
*Retired Senior Judge assigned to the Superior Court.
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“This Court will only have jurisdiction over an appellant’s second PCRA
petition when it complies with the [PCRA’s timeliness] requirement[].”
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002);
Commonwealth v. Harris, 114 A.3d 1, 6 (Pa. Super. 2015) (“[W]e likewise
lack jurisdiction to consider an appeal from disposition of [an untimely PCRA]
petition.”).1 A PCRA petition is timely if it is “filed within one year of the
date the judgment [of sentence] 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.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence
became final on December 23, 2005, 30 days after this Court affirmed his
judgment of sentence. Appellant’s present petition, his second, was filed on
or about September 21, 2015. Thus, the petition was patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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;
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1
We always have jurisdiction to consider our own jurisdiction. See
Commonwealth ex rel. Cook v. Cook, 449 A.2d 577, 581 (Pa. Super.
1982), citing Connellsville Twp. Sup'rs v. City of Connellsville, 322
A.2d 741, 742 (Pa. Cmwlth. 1974)
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(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.A. § 9545(b)(1)(i-iii). If an exception applies, a PCRA petition
may be considered if it is filed “within 60 days of the date the claim could
have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Failure to plead the applicability of a timeliness exception in the PCRA
petition renders this Court without jurisdiction to consider the merits of the
petition. See Commonwealth v. Derrickson, 923 A.2d 466, 468-469 (Pa.
Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007). In this case,
Appellant’s second PCRA petition did not allege that he satisfied one of the
PCRA’s timeliness exceptions. Accordingly, he failed to plead and prove the
applicability of a timeliness exception and this Court lacks jurisdiction to
order the PCRA court to appoint counsel to litigate Appellant’s second PCRA
petition.
Accordingly, I believe that we are constrained to affirm the PCRA
court’s October 14, 2015 order dismissing Appellant’s second PCRA petition.
Therefore, I respectfully concur in part and dissent in part.
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