J-S24022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID EUGENE FERRARA
Appellant No. 1094 WDA 2016
Appeal from the PCRA Order June 20, 2016
In the Court of Common Pleas of Jefferson County
Criminal Division at Nos: CP-33-CR-0000493-1999, CP-33-CR-0000570-
2000, CP-33-CR-0000278-2002, CP-33-CR-0000279-2002
BEFORE: PANELLA, STABILE, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 8, 2017
Appellant, David Eugene Ferrara, appeals from the June 20, 2016
order entered in the Court of Common Pleas of Jefferson County (“PCRA
court”), denying his petition for collateral relief pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we
affirm.
A panel of this Court previously addressed the history of the matter as
follows.
This case arises from incidents that occurred over ten
years ago. While Appellant initially pled nolo contendere in 2002
to three counts of incest and guilty to one count of indecent
assault, he petitioned to withdraw his plea, but the court denied
his petition. This Court reversed his judgment of sentence and
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*
Former Justice specially assigned to the Superior Court.
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in 2004, after the reinstatement of the charges against him,
Appellant again entered the same plea. He subsequently
pursued a direct appeal with this Court and we affirmed his
judgment of sentence. In 2007, Appellant filed his first PCRA,
which the court dismissed. On appeal, this Court affirmed the
dismissal. Appellant then filed a second PCRA petition, which the
court also dismissed. Although Appellant filed a Notice of Appeal
on January 25, 2010, he filed an “Application to Dismiss,” which
this Court granted, thereby discontinuing his appeal.
Commonwealth v. Ferrara, No. 1268 WDA 2010, unpublished
memorandum, at 2 (Pa. Super. filed April 13, 2011). Appellant filed a third
PCRA petition, stylized as a petition for writ of habeas corpus on June 11,
2010. The PCRA court dismissed the petition as untimely, and this Court
affirmed. Id. at 5.
On May 16, 2016, Appellant filed the instant PCRA petition. On May
18, 2016, the PCRA court issued a notice of intention to dismiss the PCRA
petition as untimely. Appellant petitioned for leave to file a supplemental
PCRA on May 27, 2016, and an objection to the dismissal of the PCRA
petition on June 13, 2016. On June 20, 2016, the PCRA court denied
Appellant’s petition for leave to amend and dismissed the PCRA petition.
Appellant filed a notice of appeal on July 21, 2016. On September 9,
2016, Appellant filed a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The PCRA court issued a 1925(a) opinion on
September 12, 2016.1
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1
This opinion was titled “Order Dismissing PCRA Petition;” however, the
PCRA court issued an order on October 4, 2016, correcting the title of the
document.
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Appellant raises nine issues on appeal, which we repeat verbatim.
I. Whether the denial of the PCRA Petition was Lawful?
II. Whether the [PCRA court] was required as a matter of
Legislative Statute, 42 PA.C.S.A. §9760(2)(3); 1 PA.C.S.A.
§ 1921, mandated to credit time already served to, Pro Se’
Appallant, before fashioning a new negotiated Nolo
Contendere Pleas, April 12, 2004?
III. Whether the [PCRA court] answered any averments and
well formulated pleadings, pursuant to Fed.R.Civil.P.
8(a)(e), stated in Post Conviction Relief Act, Nunc Pro
Tunc, filed May 11, 2016, and “objections Dismissing PCRA
Petition” filed June 7, 2016, impeding justice and
obstructing justice, to a innocent man, David E. Ferrara
(Appellant)?
IV. Whether the PCRA Petition was timely filed, challenging the
illegal sentence of probation, pursuant to 42 PA.C.S.A. §
9541, that disregarded Legislative Statute, 42 PA.C.S.A. §
9754(a); 1 PA.C.S.A. § 1921(a-c)(1-8) that was excessive
and unlawful?
V. Whether [the PCRA court], did “Obstruct Process” and
“Obstructing Justice” to Pro Se’ Appellant, by conveniently
taking the back door, to presumptively state (without any
facts of the record) that was quote: (26) Page (Petition)
when actually it was a “Post Collateral Relief Act” Petition,
and stated: …was “Nothing but a reiteration of allegations
that both Courts, [PCRA court] and Superior Court,
Western District; have rejected in the past (some of them
multiple time) and our supreme Court has declined to
consider?
VI. Whether [the PCRA court], had statutory authorization to,
sentence Appellant to a double jeopardy sentence, that
violated the “Double Jeopardy Clause” of United States
Constitution? Id. Us. Const. 14 Amend; Article I, sec. 10 of
Pennsylvania Constitution.
VII. Whether [the PCRA court], had statutory authorization,
ordering probation, totaling twenty-seven (27) years on
April 12, 2004, exceeding the maximum term for which
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[Appellant] could be confined, when it didn’t explain how
that life time probation, pursuant to 42 PA.R.Crim.P.
704(c)(2); would contributes to the rehabilitation of the
Appellant; pursuant to, 42 PA.C.S.A. § 9754(a); 1
PA.C.S.A. § 1921(a-c)(1-8); 42 PA.C.S.A. § 9781(a); 42
PA.C.S.A. § 9541; Article I, §10, Pennsylvania
Constitution; 42 PA.C.S.A. § 9721?
VIII. Whether counsel, Robert Taylor, Esq., was rendering his
services as advocate Attorney, on April 12, 2004, by not
objecting to Double Jeopardy Sentence of probation of
twenty-seven (27) years, total, and omitted procedural
protection of the Meagan’s Law II, pursuant to, 42
PA.C.S.A. § 9795.4(e)(2); 1 PA.C.S.A. § 1921(a-c)(1-8)?
IX. Did the [PCRA court], provide Pro Se’ Appellant, procedural
protection of the Meagan’s Law II, pursuant to, 42
PA.C.S.A. § 9795.4(e)(2); 1 PA.C.S.A. § 1921(a-c)(1-8)
September 11, 2002 and April 12, 2004, before Meagan’s
Law II hearing; which Appellant didn’t receive a fair
hearing?
Appellant’s Brief at 5-7 (sic).
It is well established that “an appellate court reviews the PCRA court’s
findings of fact to determine whether they are supported by the record, and
reviews its conclusions of law to determine whether they are free from legal
error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting
Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). Moreover, all
PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). Such “restrictions are
jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this
Court nor the [PCRA] court has jurisdiction over the petition. Without
jurisdiction, we simply do not have the legal authority to address the
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substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (first alteration in original) (internal citations and quotation marks
omitted).
There are three exceptions to the timeliness requirement of the PCRA.
These exceptions 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).
Appellant briefly mentions the timeliness requirement in his brief;
however, Appellant’s argument is misplaced. Appellant asserts the
government interference exception applies because the sentence imposed by
the trial court exceeded the statutory maximum. See Appellant’s Brief at 13.
This argument fails as Appellant is attempting to couch a legality of sentence
claim as an automatic exception to the timeliness requirement of the PCRA.
As long as this Court has jurisdiction over a matter, a
legality of sentencing issue is reviewable and cannot be waived.
Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super.
2007). However, a legality of sentencing issue must be raised in
a timely filed PCRA Petition. See 42 Pa.C.S.A. § 9545(b)(2);
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Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223
(1999) (holding that “[a]lthough a legality of sentence is always
subject to review within the PCRA, claims must still first satisfy
the PCRA’s time limits of one of the exceptions thereto”).
Commonwealth v. Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016).
Appellant’s petition is patently untimely and he has failed to establish that a
timeliness exception applies. Thus, we conclude the PCRA court properly
dismissed Appellant’s petition as untimely.
Order affirmed. Application for correction/clarification denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2017
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