Com. v. Young, R.

J-S50036-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT YOUNG,
Appellant No. 427 WDA 2014
Appeal from the PCRA Order entered February 28, 2014,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0004113-2010
& CP-02-CR-0004115-2010.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
pro se from the order denying his
second petition for post-conviction relief filed pursuant to the Post Conviction
-46. We affirm.
The pertinent facts and procedural history may be summarized as
follows: On January 13, 2011, Appellant pled guilty to drug charges at two
different dockets. Subsequently, the trial court sentenced him to an
aggregate term of 18 months intermediate punishment, under the terms and
conditions of the Allegheny County Drug Court Program, followed by 12
months of probation. Thereafter, Appellant violated his probation and was
revoked from the Drug Court Program. On February 27, 2012, the trial
court resentenced Appellant to an aggregate term of 54 to 108 months of
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incarceration. Appellant filed neither post-sentence motions nor an appeal
to this Court.
Appellant filed a timely pro se PCRA petition on August 10, 2012, and
the PCRA court appointed counsel. On April 4, 2013, PCRA counsel filed a
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Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
May 13, 2013, the PCRA court filed Pa.R.Crim.P. 907 notice of its intent to
er
Although properly advised of his right to do so, Appellant did not file an
appeal to this Court.
On August 29, 2013, Appellant filed a second pro se PCRA petition. On
January 27, 2014, the PCRA court issued Pa.R.Crim.P. 907 notice of its
again, Appellant did not file a response. By order entered February 28,
second PCRA petition. This
timely appeal followed. The PCRA court did not require Pa.R.A.P. 1925
compliance.
petition under the PCRA is whether the determination of the PCRA court is
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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
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
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-
subsequent post-conviction request for relief will not be entertained unless a
strong prima facie showing is offered to demonstrate that a miscarriage of
Commonwealth v. Burkhardt, 833 A.2d 233,
236 (Pa. Super. 2003) (en banc
prima facie showing if he demonstrates that either the proceedings which
resulted in his conviction were so unfair that a miscarriage of justice
occurred which no civilized society could tolerate, or that he was innocent of
Id.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
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omitted). Thus, if a petition is untimely, neither an appellate court nor the
PCRA court has jurisdiction over the petition. Id
raised in an untimely petition. Id.Generally, a petition for relief under the PCRA, including a second or
subsequent petition, 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
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statu
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
raised before the lower court are waived and cannot be raised for the first
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Because Appellant did not file a direct appeal to this Court following
the imposition of his sentence, his judgment of sentence became final on
March 28, 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 second petition by March 28, 2013, in order for it to be timely. As
Appellant filed the instant motion on August 29, 2013, 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).
time bar. Thus, the PCRA court correctly determined that it lacked
jurisdiction to c
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conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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