Com. v. Lundy, S.

J-S22013-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN LOVE LUNDY :
:
Appellant : No. 261 EDA 2022
Appeal from the PCRA Order Entered December 22, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0003000-2017
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED JULY 25, 2022
Steve Love Lundy appeals pro se from the order denying his “Notice of
Acceptance” and “Notice of Fault and Opportunity to Cure and Contest
Acceptance” which were treated as untimely petitions pursuant to the Post
Conviction Relief Act (“PCRA”).1 We affirm.
Briefly, the history of this case is as follows. Appellant was charged with
various crimes following an assault on his wife. Ultimately, he pled nolo
contendere to the second-degree felony of strangulation and the remaining
counts were nolle prossed. On March 21, 2019, he was sentenced to serve
____________________________________________
1 Appellant calls himself “Divine Rose,” and altered the caption of the case in
his brief to refer to the “Steven Love Lundy Trust©” as the defendant.
However, we observe that the PCRA court indicated that Appellant’s legal
name remains Steven Love Lundy, and the Commonwealth filed charges
against him, not against a trust. See Supplemental Statement Pursuant to
Pa.R.A.P. 1925(a), 3/16/22, at unnumbered 1-2.
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twenty-one to sixty months of incarceration. He did not file a direct appeal
after the trial court denied his post-sentence motion.
Appellant filed the above-referenced petitions in July and August of
2021. In the first, he purported to void portions of his plea agreement and
add a term that $500,000,000 was to be deposited, exempt from levy, “to
United States Treasury and charge the same to [Appellant].” Notice, 7/15/21,
at unnumbered 2, 5-8. In the second, he indicated that the trial court and
prosecutor were in default for failing to perform the terms of the first petition.
Failure to cure the default within three days, Appellant indicated, would result
in establishing the acceptance of the “agreement” as a fact of record subject
to res judicata “pursuant to and relative to Article 1 redress of grievances
under the Ninth Amendment, Uniform Commercial Code, state statute, case
law and otherwise.” Notice, 8/4/21, at unnumbered 2.
In between Appellant’s first and second filings, the PCRA court entered
an order deeming the matter to be a motion for PCRA relief and appointed
counsel. Counsel subsequently filed a motion to withdraw as counsel,
indicating that he had discerned no viable legal claim and that Appellant had
expressed his desire to waive his right to counsel. See Motion for Leave, at
¶¶ 5-6. The PCRA court held a hearing at which, following a colloquy,
Appellant maintained his desire to represent himself. Therefore, the court
permitted counsel to withdraw. See Order, 12/27/21. By separate opinion
and order, the PCRA court dismissed the petitions, holding that their
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untimeliness deprived it of jurisdiction to entertain them. See Opinion and
Order, 12/23/21, at 2.
Appellant filed a timely notice of appeal, albeit in the incorrect court.
The PCRA court thereafter ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
submitted a filing within the specified time period, but it is unclear from its
nature, namely that it is a mere string of official-sounding terms and phrases,
whether it was intended to serve as the Rule 1925(b) statement. The PCRA
court thereafter provided a Rule 1925(a) statement citing the lack of
usefulness of his statement and indicating that it was “unable to comment on
[Appellant’s] appeal other than to say that his PCRA petitions were untimely
filed and the court therefore does not have jurisdiction to grant him relief.”
Pa.R.A.P. 1925(a) Statement, 2/9/22, at 2. Appellant filed a similarly
unhelpful brief in this Court in which he seems to suggest that the PCRA court’s
admission that it lacked jurisdiction over his PCRA petitions served to render
his conviction and sentence unconstitutional, and, therefore, null and void.
See Appellant’s brief at 4.
We begin by observing that Appellant does not dispute that his filings,
which appear to seek to invalidate his nolo contendere plea, were properly
deemed to be PCRA petitions. See, e.g., Commonwealth v. Jackson, 30
A.3d 516, 521 (Pa.Super. 2011) (“We have repeatedly held that . . . any
petition filed after the judgment of sentence becomes final will be treated as
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a PCRA petition.”). See also 42 Pa.C.S. § 9543(a)(2) (providing that
challenges to the validity of a plea and the jurisdiction of the court are
cognizable through the PCRA). “The standard of review of an order dismissing
a PCRA petition is whether that determination is supported by the evidence of
record and is free of legal error.” Commonwealth v. Cruz, 223 A.3d 274,
277 (Pa.Super. 2019) (cleaned up). “It is an appellant’s burden to persuade
us that the PCRA court erred and that relief is due.” Commonwealth v.
Stansbury, 219 A.3d 157, 161 (Pa.Super. 2019) (cleaned up).
Assuming arguendo that Appellant preserved any claims of error for
appellate review despite his unconventional Rule 1925(b) statement and his
non-conforming brief, we begin by considering whether his filings were timely,
for no court has jurisdiction to adjudicate the merits of an untimely PCRA
petition. See, e.g., Commonwealth v. Ballance, 203 A.3d 1027, 1031
(Pa.Super. 2019).
Any PCRA petition must either be filed within one year of the judgment
of sentence becoming final, or meet a timeliness exception. See 42 Pa.C.S.
§ 9545(b)(1). A petitioner bears the burden of pleading and proving a
timeliness exception. “If the petition is untimely and the petitioner has not
pled and proven an exception, the petition must be dismissed[.]”
Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.Super. 2018).
Appellant filed no direct appeal after the trial court denied his post-
sentence motion by order of March 27, 2019. Therefore, Appellant’s judgment
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of sentence became final on April 26, 2019, when the time for filing a direct
appeal expired. See 42 Pa.C.S. § 9545(b)(3) (“For purposes of this
subchapter, a judgment becomes final at the conclusion of direct review . . .
or at the expiration of time for seeking the review.”). Appellant’s filings in
July and August of 2021 were hence facially untimely. Further, they contained
no allegations that they met any timeliness exception. Nor does Appellant
address the timeliness of the petition in his appellate brief. Accordingly,
Appellant has not met his burden of convincing us that the PCRA court erred
in dismissing his filings as untimely. Thus, no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2022
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