Com. v. Zipp, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
EDWARD ZIPP,
Appellant No. 1994 MDA 2014
Appeal from the PCRA Order entered October 14, 2014,
in the Court of Common Pleas of Schuylkill County,
Criminal Division, at No(s): CP-54-CR-0000115-2011
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY ALLEN, J.: FILED MAY 07, 2015
Edward Zipp (“Appellant”) appeals from the order denying as untimely
his first petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The case history is as follows: On December 21, 2011, Appellant
entered a negotiated guilty plea to one count of criminal conspiracy, one
count of possession with intent to deliver a controlled substance (morphine),
and one count of criminal use of a communication facility. In return, the
Commonwealth withdrew all of the remaining charges. That same day, the
trial court sentenced Appellant, in accordance with the negotiated plea
agreement, to an aggregate term of six to twelve years of incarceration.
Appellant did not file a direct appeal.
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On September 5, 2014, Appellant filed a pro se “Petitioner’s Nunc Pro
Tunc Petition for Post Conviction Relief.” The PCRA court appointed counsel
to assist Appellant. On September 9, 2014, the PCRA court issued a rule to
show cause upon the Commonwealth to show why an evidentiary hearing
should not be granted. On September 22, 2014, the Commonwealth filed its
response, in which it asserted that Appellant’s PCRA petition was facially
untimely, and that Appellant had not averred facts to support an exception
to the PCRA’s time bar. On September 23, 2014, the PCRA court issued
Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition without a
hearing. Appellant filed a timely response. By order entered October 14,
2014, the PCRA court dismissed Appellant’s PCRA petition. In doing so, the
PCRA court noted that Appellant’s petition was untimely, that he failed to
aver sufficient facts to support an exception to the PCRA’s time restrictions,
and that the claims Appellant raised were meritless. This timely appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
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hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011(Pa. Super. 2001).
Before addressing the issues Appellant presents on appeal, we must
first consider whether the PCRA court properly determined that his petition
was untimely. The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citation
omitted). Thus, if a petition is untimely, neither an appellate court nor the
PCRA court has jurisdiction over the petition. Id. “Without jurisdiction, we
simply do not have the legal authority to address the substantive claims”
raised in an untimely petition. Id.Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment becomes final unless the petition alleges, and
the petitioner proves, an exception to the time for filing the petition.
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42
Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead
and prove that: “(1) there has been interference by government officials in
the presentation of the claim; or (2) there exists after-discovered facts or
evidence; or (3) a new constitutional right has been recognized.”
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations
omitted). A PCRA petition invoking one of these statutory exceptions must
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“be filed within sixty days of the date the claim first could have been
presented.” Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. §
9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must
be pled in the petition, and may not be raised for the first time on appeal.
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see
also Pa.R.A.P. 302(a) (“Issues not raised before the lower court are waived
and cannot be raised for the first time on appeal.”).
Appellant’s judgment of sentence became final on January 20, 2012,
thirty days after the time for filing a direct appeal to this Court had expired.
42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had to file his PCRA
petition by January 20, 2013, in order for it to be timely. As Appellant filed
his petition on September 5, 2014, it is untimely unless he has satisfied his
burden of pleading and proving that one of the enumerated exceptions
applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.
1999).
Appellant has failed to plead and prove any exception to the PCRA’s
time bar. Indeed, within his original PCRA petition, as well as a supplement,
Appellant did not proffer the applicability of any time-bar exception.
Burton, supra. Thus, the PCRA court properly determined that it lacked
jurisdiction to consider Appellant’s substantive issues, and we affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/2015
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