Com. v. Clark, T.

J-S05022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY DAVID CLARK, :
:
Appellant : No. 900 WDA 2014
Appeal from the PCRA Order Entered April 25, 2014,
In the Court of Common Pleas of Clearfield County,
Criminal Division, at Nos. CP-17-CR-0000137-2009
and CP-17-CR-0000726-2009.
BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 03, 2015
Appellant, Troy David Clark, appeals pro se from the April 25, 2014
order that denied his second petition for relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we
affirm.
The record reveals that on September 22, 2009, Appellant entered
open guilty pleas at trial court docket numbers CP-17-CR-0000137-2009 and
CP-17-CR-0000726-2009. At docket number CP-17-CR-0000137-2009,
Appellant pled guilty to one count each of aggravated assault, simple
assault, and disorderly conduct. At docket number CP-17-CR-0000726-
2009, Appellant pled guilty to one count each of intimidation of a witness,
terroristic threats, and simple assault. The trial court sentenced Appellant
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on September 28, 2009, to an aggregate term of ten months to fifteen years
of incarceration. No direct appeal was filed.
On June 29, 2010, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and counsel filed an amended PCRA petition on
March 30, 2011. The PCRA court denied Appellant relief in an order filed on
February 27, 2012. Appellant filed a timely appeal on March 16, 2012, and
this Court affirmed the PCRA court’s order on May 30, 2013.
Commonwealth v. Clark, 494 WDA 2012, 81 A.3d 1009 (Pa. Super. filed
May 30, 2013) (unpublished memorandum).
Thereafter, Appellant filed, pro se, a second PCRA petition on June 25,
2013. The PCRA court appointed counsel on December 13, 2013. Counsel
subsequently filed a Turner/Finley1 no-merit letter and a petition to
withdraw on February 28, 2014. In an order filed on April 25, 2014, the
PCRA court granted counsel’s petition to withdraw and dismissed Appellant’s
PCRA petition. This timely appeal followed.
On appeal, Appellant raises one issue:
Whether the PCRA court erred as a matter of law and/or abused
its discretion, when it dismissed Appellant’s PCRA petition
without issuing a notice to dismiss, in accordance with
Pa.R.Crim.P., Rule 907.
Appellant’s Brief at 1 (full capitalization omitted).
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (setting forth
the procedure for counsel to withdraw in PCRA matters).
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s decision is free of legal error. Commonwealth v. Phillips, 31 A.3d
317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d
479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed
unless there is no support for them in the certified record. Id. (citing
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).
Before we may reach the merits of Appellant’s claim of error, we must
address whether Appellant satisfied the timeliness requirements of the
PCRA. It is well settled that the timeliness of a PCRA petition is a
jurisdictional threshold that may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). In order to be
considered timely, a first, or any subsequent PCRA petition, must be filed
within one year of the date the petitioner’s judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “becomes final at
the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3).
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However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented.
42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.
Our review of the record reflects that Appellant’s judgment of sentence
became final on October 28, 2009, thirty days after the time expired for
Appellant to file a direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3);
2
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
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Pa.R.A.P. 1113. Accordingly, Appellant’s instant PCRA petition, his second,
which was filed on June 25, 2013, is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §
9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted.
42 Pa.C.S. § 9545(b)(2).
In his sole issue on appeal, Appellant correctly asserts that the PCRA
court failed to comply with Pa.R.Crim.P. 907 by not providing him with
notice that it intended to dismiss his PCRA petition without holding an
evidentiary hearing. However, “our Supreme Court has held that where the
PCRA petition is untimely, the failure to provide such notice is not reversible
error.” Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007)
(citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000)).
Thus, the failure of the PCRA court to provide the Rule 907 notice does not
entitle Appellant to relief. Davis, 916 A.2d at 1208. See also
Commonwealth v. Kutnyak, 781 A.2d 1259, 1263 (Pa. Super. 2000)
(recognizing that under Pursell, the absence of Pa.R.Crim.P. 1507, now
Rule 907, notice, standing alone, does not provide a basis for reversal of the
dismissal of an untimely PCRA petition).
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Because Appellant raised no additional issues and provided no
argument or basis upon which an exception to the PCRA time bar applies, we
conclude that Appellant’s PCRA petition was untimely. Accordingly, because
the instant PCRA petition was untimely and no exceptions apply, the PCRA
court lacked jurisdiction to address the claim presented. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that the PCRA court lacks jurisdiction to hear an untimely petition).
Likewise, we lack jurisdiction to reach the merits of the appeal. See
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding that the Superior Court lacks jurisdiction to reach the merits of an
appeal from an untimely PCRA petition). Therefore, we affirm the order
denying Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2015
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