Com. v. Diaz, U. ( 2017 )

J-S60026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ULYSSES S. DIAZ, :
:
Appellant : No. 193 WDA 2017
Appeal from the PCRA Order January 5, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000652-2010
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED OCTOBER 04, 2017
Appellant, Ulysses S. Diaz, appeals from the Order entered in the Erie
County Court of Common Pleas dismissing his Petition filed under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, as untimely. After
careful review, we affirm.
On September 16, 2010, a jury convicted Appellant of Attempted
Robbery and related offenses. The trial court sentenced him on November
12, 2010, and this Court affirmed the Judgment of Sentence.
Commonwealth v. Diaz, 37 A.3d 1233 (Pa. Super. 2011) (unpublished
memorandum). Appellant did not file a Petition for Allowance of Appeal
(“PAA”) with our Supreme Court at that time. Instead, he filed a PCRA
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* Former Justice specially assigned to the Superior Court.
J-S60026-17
Petition in which he sought, and was granted, the reinstatement of his right
to file a PAA with our Supreme Court.
On May 23, 2013, Appellant filed a counseled PAA with the
Pennsylvania Supreme Court, which was denied on September 17, 2013.
Commonwealth v. Diaz, 74 A.3d 1029 (Pa. 2013).1 Appellant did not file a
Petition for Writ of Certiorari with the U.S. Supreme Court. His Judgment of
Sentence, thus, became final ninety days later on December 16, 2013. See
42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 13. Pursuant to 42 Pa.C.S. §
9545(b)(1) and (3), Appellant had one year within which to file a PCRA
Petition, i.e., no later than December 16, 2014.
On January 2, 2015, Appellant mailed the instant PCRA Petition pro se
from prison, which the clerk of the Erie County court of common pleas
(“CCP”) docketed on January 6, 2015. The PCRA court appointed counsel,
who subsequently filed a no-merit letter and a Petition for Leave to Withdraw
as Counsel. On December 13, 2016, the PCRA court issued a Pa.R.Crim.P.
907 Notice of Intent to Dismiss and granted counsel’s Petition for Leave to
Withdraw. On January 6, 2017, the PCRA court dismissed the PCRA Petition
as untimely. Appellant timely appealed.
Appellant now asserts, without citing to relevant authority, that the
PCRA court erred in dismissing his Petition as untimely because the Supreme
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1The Erie County CCP clerk docketed the Supreme Court’s Order on October
7, 2013.
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Court’s denial of his PAA became “operative” on October 7, 2013, when the
Erie County CCP clerk docketed the Supreme Court’s September 17, 2013
Order. See Appellant’s Brief at 4. According to Appellant, his Judgment of
Sentence, thus, became final on January 5, 2014, and he then had until
January 5, 2015, to file a PCRA Petition. Appellant contends that because he
mailed his PCRA Petition from prison on January 2, 2015, it was timely filed
pursuant to the Prisoner Mailbox Rule.
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. § 9545(b)(3). The PCRA's timeliness
requirements are jurisdictional in nature, and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). Moreover,
“the PCRA confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA time-bar in addition to those exceptions
expressly delineated in the Act.” Commonwealth. v. Hackett, 956 A.2d
978, 983–84 (Pa. 2008).
Appellant cites no legal authority to support his contention that the
date on which the local clerk of courts docketed its copy of a Supreme Court
Order equates to the “conclusion of direct review” so as to be the date on
which his Judgment of Sentence became final. As detailed above, pursuant
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to the plain language of the PCRA, Appellant had until December 16, 2014,
to file his PCRA Petition. His filing on January 2, 2015, was, therefore,
untimely.
Appellant has not attempted to plead or prove that his Petition falls
within the timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1).
Because no court has jurisdiction to hear an untimely PCRA Petition, the
PCRA court properly dismissed the Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2017
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