Com. v. Lugo, N. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
NELSON LUGO, : No. 2986 EDA 2014
:
Appellant :
Appeal from the PCRA Order, September 26, 2014,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0002638-2004
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 09, 2015
Appellant, Nelson Lugo, appeals from the September 26, 2014 order
dismissing his fifth petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Finding that the PCRA petition under
review was untimely filed and that no valid exception to the time
requirements of the PCRA exists, we affirm.
The facts, as summarized by the PCRA court, are as follows:
On September 12, 2005, [a]ppellant entered
open guilty pleas in this case, and case No. 4407-
2004, to one count of possession with the intent to
deliver cocaine, two counts of delivery of cocaine,
and one count of corrupt organizations. He was
sentenced on December 15, 2005, to serve a term of
imprisonment of twenty-six (26) to sixty-eight (68)
years. In his appeal to the Superior Court,
[a]ppellant challenged his sentence as unduly harsh.
The Superior Court disagreed, and affirmed
[a]ppellant’s judgment of sentence on October 10,
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2006. The Pennsylvania Supreme Court denied his
petition for allowance of appeal on March 27, 2007.
Appellant filed his first PCRA petition on
October 29, 2007, and subsequent petitions on
April 21, 2009, May 3, 2010,[Footnote 1] and
January 24, 2011. All were denied or dismissed, and
all appeals unsuccessful. On April 9, 2014,
[a]ppellant filed the instant PCRA petition. Our
review of the petition revealed it to be untimely, and
on September 9, 2014, we gave [a]ppellant notice of
our intent to dismiss his petition. Appellant promptly
responded to this notice, but raised no issue that
would have required that the proceedings continue.
Accordingly, on September 26, 2014, we dismissed
[a]ppellant’s most recent petition for post-conviction
collateral relief. This appeal followed.
[Footnote 1] Appellant acknowledged
that this petition was untimely, but
claimed entitlement to the newly
discovered facts exception to the PCRA’s
timeliness requirements. 42 Pa.C.S.A.
§ 9545(b)(1)(ii).
PCRA court opinion, 11/24/14 at 1-2.
The following issue has been presented for our review:
I. WHETHER THE PCRA COURT ERRED WHEN IT
DISMISSED THE POST CONVICTION PETITION
AS “TIME BARRED” WHERE THE SENTENCE
WAS NOT IMPOSED IN OPEN COURT AND NO
FINAL JUDGMENT WAS ENTERED?
Appellant’s brief at 1.
Our standard of review for an order denying post-conviction relief is
whether the record supports the PCRA court’s determination, and whether
the PCRA court’s determination is free of legal error. Commonwealth v.
Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings
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will not be disturbed unless there is no support for the findings in the
certified record. Id.A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d
1163 (Pa. 2008).
Appellant’s judgment of sentence became final on June 25, 2007,
ninety days after the Pennsylvania Supreme Court denied his petition for
allowance of appeal. Appellant had one year from that date to file a PCRA
petition. The instant petition was filed on April 9, 2014, is manifestly
untimely, and cannot be reviewed unless appellant invokes a valid exception
to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A review
of the petition reveals that appellant has not invoked any time of filing
exception; thus, both the PCRA court and this court are without jurisdiction
to review the issues raised in appellant’s petition. (See docket #8.)
Accordingly, having found that appellant’s PCRA petition was untimely
filed and that no time of filing exception was invoked, we will affirm the
order below.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/2015
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