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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NEAL I. MCCOLLUM :
:
Appellant : No. 1117 MDA 2018
Appeal from the PCRA Order Entered June 21, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002018-2004
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 28, 2019
Neal I. McCollum (Appellant) appeals pro se from the order denying as
untimely his third petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.
This Court previously explained:
In April 2006, [Appellant] was convicted of rape of a child and
related offenses, stemming from his having repeatedly sexually
assaulted the mentally handicapped minor daughter of his then-
girlfriend. [Appellant] was sentenced to serve an aggregate prison
term of 21 to 42 years. This Court affirmed [Appellant’s] judgment
of sentence, after which the Supreme Court of Pennsylvania
denied allowance of appeal. See Commonwealth v. McCollum,
945 A.2d 765 (Pa. Super. 2007) (unpublished memorandum),
appeal denied, 951 A.2d 1162 (Pa. 2008). In September 2008,
[Appellant] filed a timely Petition for collateral relief under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546, which
the PCRA court dismissed. This Court affirmed the dismissal, after
which the Supreme Court of Pennsylvania denied allowance of
appeal. See Commonwealth v. McCollum, 6 A.3d 572 (Pa.
Super. 2010) (unpublished memorandum), appeal denied, 2011
Pa. LEXIS 1126 (Pa. 2011).
*Retired Senior Judge assigned to the Superior Court.
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In February 2012, [Appellant] filed a Habeas Corpus Petition in
the United States District Court for the Middle District of
Pennsylvania, which the federal court dismissed. See McCollum
v. Cameron, 2012 U.S. Dist. LEXIS 88953, 2012 WL 2462294
(M.D. Pa. 2012).
Commonwealth v. McCollum, No. 839 MDA 2016, at *1 (Pa. Super. Ct. Mar.
30, 2017) (affirming the denial of Appellant’s second PCRA petition). In
finding that Appellant’s second PCRA petition was untimely, we stated that his
“judgment of sentence became final in October 2008.” Id. at *2, citing 42
Pa.C.S.A. § 9545(b)(1) (providing that a PCRA petition must be filed within
one year of the judgment of sentence becoming final).
Instantly, Appellant filed the underlying pro se “Petition for Habeas
Corpus Relief” on January 22, 2018. Citing Commonwealth v. Jackson, 30
A.3d 516, 521 (Pa. Super. 2011), the PCRA court recognized that a petition
“filed after the judgment of sentence becomes final will be treated as a PCRA
petition” and properly treated Appellant’s petition as being filed under the
PCRA. See PCRA Court Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 4/19/18, at 1 n.1. On April 19, 2018, the PCRA court issued
notice of intent to dismiss the PCRA petition without a hearing pursuant to
Rule 907. See id. On June 21, 2018, the PCRA court dismissed the petition
on the basis that it was untimely. Appellant filed this appeal on July 5, 2018.
On appeal, Appellant lists nine issues. See Appellant’s Brief at 1. In
the summary of his argument, Appellant states verbatim:
Has the PCRA court or any court properly dismissed
Appellant’s Construed PCRA petition because none of the claims
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had any merit. This Honorable Court has the Authority and Power
to over turn an Error so great it numbs the conscience of all who
may have opportunity to counter act delayed justice; or just
maybe do the right thing by an innocent man. In addition, the
claims of ineffective assistance of counsel presented are more
than bold assertions that do have support with the documentation
hereto within.
Appellant’s Brief at 4.
Before proceeding further, we turn to the PCRA court’s determination
that Appellant’s petition was untimely. Our standard of review of an order
denying PCRA relief is “whether the PCRA court’s determination is supported
by the evidence of record and free of legal error. We grant great deference
to the PCRA court’s findings, and we will not disturb those findings unless they
are unsupported by the certified record.” Commonwealth v. Holt, 175 A.3d
1014, 1017 (Pa. Super. 2017) (citation omitted). Before we reach the merits
of a petitioner’s claim, Section 9545 of the PCRA requires that “[a]ny petition
under this subchapter, including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final.” 42 Pa.C.S.A. §
9545(b)(1). The timeliness requirement of the PCRA is “mandatory and
jurisdictional in nature.” Commonwealth v. McKeever, 947 A.2d 782, 784-
785 (Pa. Super. 2008) (citing omitted). Therefore, “no court may disregard,
alter, or create equitable exceptions to the timeliness requirement in order to
reach the substance of a petitioner’s arguments.” Id. Although the timeliness
requirement is mandatory and jurisdictional, “an untimely petition may be
received when the petition alleges, and the petitioner proves, that any of the
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three limited exceptions to the time for filing set forth at 42 Pa.C.S.A. §
9545(b)(1)(i), (ii), and (iii), is met.” Commonwealth v. Hernandez, 79
A.3d 649, 651 (Pa. Super. 2013). 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.A. § 9545(b)(1)(i)-(iii). A petition invoking an exception “shall be
filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2).
As noted above, this Court previously held that Appellant’s judgment of
sentence became final in October 2008. Commonwealth v. McCollum, No.
839 MDA 2016, at *2. Under Section 9545(b)(1), Appellant had to file his
PCRA petition within one year, by October 2009, to meet the PCRA’s timeliness
requirement. Appellant filed the underlying petition on January 22, 2018 –
nearly 10 years after his judgment of sentence became final. Therefore, we
are without jurisdiction to decide Appellant’s appeal unless he has pled and
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proved one of the three exceptions of Section 9545(b)(1). Appellant has failed
to do so.
The PCRA court accurately summarized the content of Appellant’s
petition:
[Appellant] claims that the behavior of various members of
the Dauphin County justice system and a justice on the
Pennsylvania Supreme Court bench in sending and/or receiving
certain emails (of public record) reflect bias against persons of
color and perpetuate negative stereotypes. [Appellant] seeks to
have his sentence vacated as a consequence of such emails and,
in support, asserts that a Pennsylvania Supreme Court justice was
in proceedings before the Judicial Conduct Board at the time
[Appellant’s] prior Habeas Corpus petition was pending.
[Appellant’s] vague and tenuous contention that those
involved in sending/receiving such emails in some way interfered
with his request for relief is insufficient to invoke any of the
timeliness exceptions. See Commonwealth v. Crews, 863 A.2d
498, 501 (Pa. 2004) (petitioner has the burden to plead in the
petition and prove that one of the exceptions applies; such burden
entails an acknowledgement that the PCRA petition under review
is untimely but that an exception applies).
PCRA Court’s Notice Pursuant to Rule 907, 4/19/18, at 2.
In his appellate brief, Appellant fails to mention or argue – with regard
to alleged impropriety of members of the judiciary or otherwise – that his
petition qualifies for an exception to the PCRA’s timeliness requirement.
Appellant does not reference the PCRA’s time restrictions or address the PCRA
court’s finding that his petition is untimely. See Appellant’s Brief at 4-10.1
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1 As best we can discern, Appellant’s assertions concerning an “invalid
charging instrument,” “faulty criminal complaint and information sheet,”
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In sum, Appellant has failed to advance an exception to the PCRA’s time
bar. See Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009)
(It is an appellant’s obligation to sufficiently develop arguments in his brief by
applying the relevant law to the facts of the case, persuade this Court that
there were errors below, and convince us relief is due because of those
errors.). We thus affirm the order of the PCRA court denying as untimely
Appellant’s third petition filed pursuant to the PCRA.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/28/2019
____________________________________________
illegal sentence, and ineffectiveness of counsel, are claims that Appellant has
already raised, or waived because he could have raised them previously. 42
Pa.C.S.A. §9544 (a), (b).
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