Com. v. Roser, H. ( 2018 )

J-S76011-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
HARRY C. ROSER :
: No. 2550 EDA 2017
Appellant :
Appeal from the PCRA Order July 24, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002577-2014
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
JUDGMENT ORDER BY PANELLA, J. FILED MARCH 28, 2018
Harry C. Roser is serving a 2½ to 5 year sentence for his seventh DUI
conviction.1 At issue in this pro se appeal is Roser’s second petition filed under
the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, which he
concedes is untimely.2 We affirm.
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 Retired Senior Judge assigned to the Superior Court.
1 For a background of this case, we refer the interested reader to
Commonwealth v. Roser, No. 1533 EDA 2016 (Pa. Super., filed 2/14/17)
(unpublished memorandum). Briefly, Roser was on probation for his prior DUI
when the police pulled him “over for driving onto a cement median,
endangering the safety of emergency personnel responding to a fatal accident,
and almost striking a police officer.” Id., at 1-2. His blood alcohol registered
an astonishing 0.300%.
2 The trial court imposed the judgment of sentence on June 17, 2015. Roser
did not file a direct appeal. Thus, the judgment of sentence became final on
July 17, 2015. Roser filed the petition at issue on May 17, 2017—one year and
ten months after his judgment of sentence became final.
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The timing of a petition “is a threshold question implicating our subject
matter jurisdiction and ability to grant the requested relief.” Commonwealth
v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations omitted). A second
petition must be filed within one year of the date the judgment is final unless
the petition alleges, and the petitioner proves, an exception to the timeliness
requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition invoking one
of these statutory exceptions “shall be filed within 60 days of the date the
claim could have been presented[,]” 42 Pa.C.S.A. § 9545(b)(2), and
exceptions to the PCRA’s time bar must be pled in the petition, see
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007).
In his second petition and in an authorized amendment thereto, Roser
advances two claims challenging the legality of his sentence. In the second
petition, he alleges the court imposed an illegal sentence that relied on
“improper factors.” In the amendment, he asserts the court imposed an illegal
sentence by not ordering a drug and alcohol assessment pursuant to 75
Pa.C.S.A. § 3814. “Although legality of sentence is always subject to review
within the PCRA, claims must still first satisfy the PCRA’s time limits or one of
the exceptions thereto.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.
Super. 2007) (citations and brackets omitted).
He does not specifically plead a timeliness exception in either his second
petition or the amendment. In his convoluted, rambling filings, we can discern
two contentions.
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First, he alleges the ineffective assistance of counsel who represented
him in his first PCRA proceeding—that he brought both of these claims to
counsel’s attention, but the attorney failed to pursue them. “It is well settled
that allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.” Commonwealth v.
Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (citations omitted).
Second, he claims the PCRA court did not grant him permission to
amend his first PCRA to include these two claims.3 Counsel represented Roser
when Roser filed the pro se motions to amend. “[A] defendant is not entitled
to hybrid representation.” Commonwealth v. Morgan, 39 A.3d 419, 420
(Pa. Super. 2012) (citations omitted). A review of the docket entries reveals
the lower court prothonotary properly docketed Roser’s pro se filings and
forwarded copies to counsel. See Commonwealth v. Padilla, 80 A.3d 1238,
1258 (Pa. 2013).
Since Roser’s second PCRA petition is untimely and since he did not
argue the applicability of any of the statutory exceptions to the one-year time-
bar, we, like the PCRA court, are without jurisdiction.
Order affirmed.
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3The record readily reveals Roser is a prolific pro se filer. He takes a “more is
more” approach that seldom benefits the pro se litigant.
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J-S76011-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/18
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