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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID G. LUDWIG
Appellant No. 1075 MDA 2016
Appeal from the PCRA Order Dated May 19, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005841-2005
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED JANUARY 13, 2017
Appellant David G. Ludwig appeals from the order dismissing his
second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541–9546. The PCRA court found the petition untimely and
therefore not within its jurisdiction. We affirm.
On June 14, 2006, Appellant entered a negotiated guilty plea to two
counts of first-degree murder and one count each of statutory sexual
assault, carrying firearms without a license, and recklessly endangering
another person.1 At the time of the crimes, Appellant was 18½ years old.
The trial court sentenced Appellant to two consecutive mandatory terms of
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 2502(a), 3122.1, 6106(a)(1), and 2705, respectively.
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life imprisonment for the first-degree murder convictions pursuant to 18
Pa.C.S. § 1102(a)(1), and a consecutive term of nine-and-one-half to
nineteen years’ imprisonment for the remaining charges. PCRA Ct. Op.,
5/19/16, at 1-3. Appellant did not file a direct appeal.
On August 17, 2012, Appellant, pro se, filed his first petition for post-
conviction relief. Counsel was appointed, and, concluding that the petition
was untimely, filed a “no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). The PCRA court dismissed
Appellant’s first petition as untimely on October 16, 2012. This Court
affirmed the denial of Appellant’s first petition, Commonwealth v. Ludwig,
No. 1999 MDA 2012 (Pa. Super., July 10, 2013) (unpublished
memorandum), and the Supreme Court of Pennsylvania denied allocatur,
No. 674 MAL 2013 (Pa., Jan. 7, 2014).
On March 24, 2016, Ludwig filed the instant PCRA petition, his second,
pro se. On April 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of
intent to dismiss this petition on the basis that it was untimely and Appellant
had failed to plead any exception to the PCRA’s time bar. On May 6, 2016,
Appellant filed a pro se response, stating, among other things, that his
petition was timely, and invoking the exceptions to the PCRA’s time bar that
are set forth at 42 Pa.C.S. § 9545(b)(ii) and (iii). By an order entered May
19, 2016, the PCRA court dismissed Appellant’s petition as untimely.
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Appellant then mailed to this Court a notice of appeal that is dated June 16,
2016.
On appeal, Appellant raises the following issues, as stated in his brief:
Is Appellant, according to the Pa. Constitution, common law
definitions, and case law a minor and therefore fits into the
subclass of those defined as a juvenile entitling him to the same
protections afforded his minor counterparts in recent U.S.
Supreme Court decisions, specifically “Montgomery v. Louisiana”
finding “Miller v. Alabama” to be retroactive[?]
Did Appellant suffer ineffective assistance of trial counsel where
counsel failed to utilize scientific evidence readily available to
demonstrate Appellant[’s] diminished capacity?
The defendant’s 6th and 14th Amendment rights were violated at
the sentencing phase rendering the plea null and void.
Did the Appellant have a diminished culpability to negate [mens]
rea?
Did the Commonwealth create 2 separate classes prohibiting 18-
25 year olds from utilizing scientific evidence relied upon in
Montgomery/Miller and denying them equal protection and due
process of the law?
As a new substantive rule of constitutional law barring certain
mandatory minimums, it is unlawful to withhold the application
of Alleyne v. United States, 133 S.Ct. 215[1] (2013) to
Appellant’s mandatory minimum life imprisonment sentence and
it’s “without parole.”
Appellant’s Brief at 6.
This Court’s Jurisdiction
Before we address Appellant’s issues, we must determine whether
Appellant timely filed his notice of appeal. Although neither party raises this
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issue, we address it sua sponte because it implicates our jurisdiction.
Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998).
In order for this Court to have jurisdiction, Appellant’s notice of appeal
must have been filed within thirty days of the PCRA court’s order. See
Pa.R.A.P. 903(a) (time for filing appeal); Cooper, 710 A.2d at 78 (court
lacks jurisdiction if notice of appeal is not timely filed). Under the “prisoner
mailbox rule,” a pro se prisoner’s notice of appeal is deemed filed “on the
date that the appellant deposits the appeal with prison authorities and/or
places it in the prison mailbox.” Commonwealth v. Jones, 700 A.2d 423,
426 (Pa. 1997). Where the facts concerning the timeliness of a notice of
appeal are in dispute, a remand for an evidentiary hearing may be
necessary. Id. at 426 n.3. “Where, however, the opposing party does not
challenge the timeliness of the appeal and the prisoner’s assertion of
timeliness is plausible, we may find the appeal timely without remand.”
Cooper, 710 A.2d at 79 (citing Jones, 700 A.2d at 426 n.3).
In Cooper, the proof of service for the notice of appeal stated that the
notice was timely filed, and the court received the notice two days after the
thirty-day period expired. Cooper, 710 A.2d at 79. Further, neither party
raised the issue of the timeliness of the appeal. Id. This Court held that
under those circumstances, there was “plausible” evidence that the notice
was timely, and we therefore could address the merits of the appeal. Id.;
see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.
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2007) (deeming appeal timely based on date on notice of appeal and fact
that court received it three days after thirty-day period expired).
In this case, the PCRA court’s order dismissing Appellant’s petition was
docketed on May 19, 2016. Because the 30th day fell on Saturday, June 18,
2016, Appellant had until Monday, June 20, 2016, to file a timely notice of
appeal. See 1 Pa.C.S. § 1908 (“Whenever the last day of any [period of time
referred to in any statute] shall fall on Saturday or Sunday . . . such day
shall be omitted from the computation”).
The trial court docket says that Appellant’s notice of appeal was filed
on June 27, 2016, seven days late. However, the Commonwealth does not
challenge the timeliness of this appeal.2 The certificate of service that
accompanied the notice of appeal is dated June 16, 2016, which is well
within the 30-day filing period. Appellant mailed the notice to this Court,
rather than the trial court, and it was date-stamped by this Court on June
23, 2016, just three days after the thirty-day period had expired. Under
these circumstances, we hold that there is “plausible” evidence that
Appellant timely mailed his notice of appeal. See Cooper, 710 A.2d at 79.
The fact that Appellant mailed the notice of appeal to this Court, rather
than to the trial court, does not deprive this Court of jurisdiction. Appellate
Rule 905(a)(4) provides: “If a notice of appeal is mistakenly filed in an
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2
Rather than filing a brief, the Commonwealth opted to rely upon the PCRA
court’s opinion. See Letter, 10/6/16.
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appellate court, . . . the clerk shall immediately stamp it with the date of
receipt and transmit it to the clerk of the court which entered the order
appealed from, and upon payment of an additional filing fee the notice of
appeal shall be deemed filed in the trial court on the date originally filed.” 3
The sequence of events mandated by this rule explains why the notice of
appeal was not filed in the trial court until June 27, 2016. We therefore
consider Appellant’s notice of appeal timely filed and will address the merits
of his appeal.
The Timeliness of Appellant’s PCRA Petition
The PCRA court dismissed Appellant’s petition as untimely. This
Court’s standard of review regarding an order dismissing a petition under
the PCRA is “to determine whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,
191-92 (Pa. Super. 2013) (citations and internal quotation marks omitted).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
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3
Appellant was granted permission to proceed in forma pauperis. Thus, he
was not required to pay the filing fee.
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of sentence is final, unless the petition alleges and the petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).4
We have reviewed Appellant’s brief, the certified record, the relevant
law, and the opinion of the able PCRA court judge, the Honorable David L.
Ashworth. We discern no error in this case and conclude that Judge
Ashworth’s opinion, entered on May 19, 2016, ably addressed the
untimeliness of Appellant’s PCRA petition. See Barndt, 74 A.3d 185, 191-
92. Therefore, we affirm on the basis of Judge Ashworth’s well-reasoned
opinion and adopt it as our own. In the event of further proceedings, the
parties shall attach a copy of the PCRA court’s May 19, 2016 opinion to this
memorandum.
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4
The three 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).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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Circulated 12/20/2016 10:38 AM