Com. v. Santos, A.

J-S68041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANGEL SANTOS
Appellant No. 132 EDA 2015
Appeal from the PCRA Order November 18, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004603-2011
CP-39-CR-0005159-2011
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
JUDGMENT ORDER BY MUNDY, J.: FILED NOVEMBER 06, 2015
Appellant, Angel Santos, appeals pro se1 from the November 18, 2014
order dismissing his petition for relief filed pursuant to the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541-9546.2 After careful review, we affirm.
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1
We note the PCRA court appointed counsel, who subsequently withdrew
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
their progeny. Appellant does not challenge said withdrawal on appeal.
2
On March 26, 2015, this Court entered an order directing Appellant to show
cause why his appeal from docket number CP-39-CR-4603-2011 should not
be quashed under Pennsylvania Rule of Appellate Procedure 301(a)(1), as
the November 18, 2014 order was only entered on the docket for CP-39-CR-
5159-2011. Superior Court Order, 3/26/15, at 1. Appellant filed a
response, and this Court entered another order forwarding the issue to the
merits panel. Superior Court Order, 4/15/15, at 1. Upon review of the
record, we note that the two docket numbers were consolidated, insofar as
the Commonwealth agreed to nolle pros all charges at CP-39-CR-4603-2011,
(Footnote Continued Next Page)
J-S68041-15
On October 24, 2012, Appellant entered a negotiated guilty plea to
one count of possession with intent to deliver, and the trial court imposed a
sentence of five to ten years’ imprisonment.3 Appellant filed an untimely
post-sentence motion on November 19, 2012, which the trial court denied
on January 3, 2013. Appellant filed a pro se notice of appeal on January 14,
2013, which this Court quashed as untimely on February 3, 2014. Superior
Court Order, 2/3/14, 251 EDA 2013, at 1. Therefore, Appellant’s judgment
of sentence became final 30 days from the imposition of sentence, which
was November 26, 2012.4 See generally 42 Pa.C.S.A. § 9545(b)(3);
Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008). Appellant filed
the instant petition on March 17, 2014, which was untimely because it was
not filed within one year of his judgment of sentence becoming final, i.e., by
November 26, 2013.5 See generally 42 Pa.C.S.A. § 9545(b)(1).
Furthermore, neither Appellant’s brief, nor his PCRA petition alleges that any
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(Footnote Continued)
as part of the comprehensive plea bargain. N.T., 10/24/12, at 2. Therefore,
there is no Rule 301 issue in this case, and the rule is discharged.
3
35 P.S. § 780-113(a)(30).
4
We note that the 30th day fell on Friday, November 23, 2012, which was
the day after Thanksgiving. Therefore, Appellant’s notice of appeal was due
Monday, November 26, 2012. See generally 1 Pa.C.S.A. § 1908.
5
We treat March 17, 2014 as the filing date under the Prisoner Mailbox Rule,
because the record contains the envelope in which Appellant mailed his
petition. Said envelope is postmarked March 17, 2014. See generally
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation
omitted), appeal denied, 46 A.3d 715 (Pa. 2012).
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J-S68041-15
exception to the PCRA time-bar applies.6 See Commonwealth v. Taylor,
933 A.2d 1035, 1039 (Pa. Super. 2007) (stating, “[t]he PCRA specifically
provides that a petitioner raising one of the statutory exceptions to the
timeliness requirements must affirmatively plead and prove the
exception[]”) (citation omitted), appeal denied, 951 A.2d 1163 (Pa. 2008).
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s PCRA petition.7 Accordingly, the PCRA court’s
November 18, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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6
We note that although neither party, nor the PCRA court addressed the
petition’s untimeliness, it is axiomatic that the PCRA time-bar is jurisdictional
in nature, cannot be waived by the Commonwealth, and this Court is
required to raise the same sua sponte. Commonwealth v. Concordia, 97
A.3d 366, 371 (Pa. Super. 2014) (citations omitted).
7
To the extent that our analysis differs from the PCRA court’s, we note that
we may affirm the PCRA court on any legal basis supported by the record.
Commonwealth v. Doty, 48 A.3d 451, 456 (Pa. Super. 2012).
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