Com. v. Utz, D. ( 2017 )

J-S14009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DENTON DOUGLAS UTZ :
:
Appellant : No. 1651 MDA 2016
Appeal from the PCRA Order October 6, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002429-1996
BEFORE: GANTMAN, P.J., SHOGAN, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 28, 2017
Appellant, Denton Douglas Utz, appeals pro se from the order entered
in the York County Court of Common Pleas, which dismissed his third
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On January 24, 1997, a jury convicted Appellant of three
counts each of involuntary deviate sexual intercourse (“IDSI”), indecent
assault, and corruption of minors. The court sentenced Appellant on
February 26, 1997, to an aggregate term of 18-36 years’ imprisonment.
This Court affirmed the judgment of sentence on May 28, 1998. Appellant
sought no further review. Instead, on September 11, 1998, Appellant timely
filed a pro se first PCRA petition; the PCRA court appointed counsel.
Following a hearing, the PCRA court denied Appellant’s petition on March 17,
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*Retired Senior Judge assigned to the Superior Court.
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1999. This Court affirmed on August 7, 2000, and our Supreme Court
denied allowance of appeal on February 20, 2001. In 2013, Appellant
unsuccessfully litigated a second PCRA petition. Appellant filed pro se his
third and current PCRA petition on July 12, 2016. On September 21, 2016,
the PCRA court issued Pa.R.Crim.P. 907 notice. Appellant prematurely filed
a notice of appeal on October 4, 2016.1 On October 6, 2016, the PCRA court
denied relief and ordered Appellant to file a concise statement per Pa.R.A.P.
1925(b); Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions of the PCRA allow
for very limited circumstances to excuse the late filing of a petition; a
petitioner asserting a timeliness exception must file a petition within 60 days
of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-
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1
Appellant’s notice of appeal relates forward to October 6, 2016, the date
the PCRA court denied PCRA relief. See Pa.R.A.P. 905(a)(5) (stating notice
of appeal filed after court’s determination but before entry of appealable
order shall be treated as filed after such entry and on date of entry). Hence,
no appellate jurisdictional defects impede our review.
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2). When asserting the newly created constitutional right exception under
Section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’
constitutional right and that the right ‘has been held’ by that court to apply
retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.
2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).
Instantly, Appellant’s judgment of sentence became final on Monday,
June 29, 1998, upon expiration of the time to file a petition for allowance of
appeal with our Supreme Court. See Pa.R.A.P. 1113. Appellant filed his
current PCRA petition on July 12, 2016, over 18 years later, which is
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to
invoke the “new constitutional right” exception to the PCRA time bar, relying
on Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012),
to support a claim of ineffective assistance of counsel. Appellant, however,
did not file his current petition within 60 days of that decision. 42 Pa.C.S.A.
§ 9545(b)(2). Additionally, Martinez applies only in the context of federal
habeas corpus law and is irrelevant to a PCRA timeliness analysis. See
Commonwealth v. Saunders, 60 A.3d 162 (Pa.Super. 2013), appeal
denied, 621 Pa. 657, 72 A.3d 603 (2013). Therefore, Appellant’s PCRA
petition remains untimely, and the PCRA court lacked jurisdiction to review
it. See Turner, supra. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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