J-S18030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

CHARLES PARKER

                            Appellant                      No. 2232 EDA 2016


                Appeal from the PCRA Order dated June 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0409341-2001

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                     FILED MAY 31, 2017

        Appellant, Charles Parker, appeals pro se from the order dismissing as

untimely his second petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–46. We affirm.

        On December 7, 2001, following a bench trial, Appellant was found

guilty of one count of aggravated assault and one count of possessing an

instrument of crime.1       See Commonwealth v. Parker, 23 A.3d 573 (Pa.

Super. 2010) (unpublished memorandum at 2).                On August 12, 2002, the

trial court sentenced Appellant to eight to twenty-two years’ incarceration

for aggravated assault, and a consecutive one to two years’ incarceration for

possessing an instrument of crime.             Id.   This Court affirmed Appellant’s
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702 and 907.
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judgment of sentence on direct appeal.2           Id.   Appellant petitioned the

Supreme Court for allowance of appeal.           The Supreme Court denied the

petition for allowance of appeal on November 30, 2011.

        On June 14, 2012, Appellant filed a timely PCRA petition. Thereafter,

Appellant obtained counsel and amended PCRA petitions were filed on April

11, 2013, May 5, 2014 and June 9, 2014. On January 21, 2015, the PCRA

court issued notice of its intent to dismiss the petition pursuant to

Pa.R.Crim.P. 907, and entered an order doing so on April 17, 2015.

Appellant did not file an appeal.

        On December 3, 2015, Appellant filed the PCRA petition presently

before us. On May 31, 2016, the PCRA court issued notice of its intent to

dismiss the petition pursuant to Pa.R.Crim.P. 907, and dismissed the petition

on June 22, 2016. This timely appeal followed.

        Appellant has not included a statement of questions involved in his

brief as prescribed by Pa.R.A.P. 2119(a)(4). However, Appellant argues that

the PCRA court erred in dismissing his PCRA petition as untimely because he

has “a constitutionally protected right to review.” Appellant’s Brief at 3-4.

Appellant references his unsuccessful first PCRA petition, characterizes its

dismissal as “misconduct” by the PCRA court, and references the PCRA

court’s “impropriety” and “impartiality.” Id. at 7-14. Appellant appears to

imply that since his first PCRA petition was timely, he has circumvented the
____________________________________________
2
    Appellant’s direct appeal rights were reinstated nunc pro tunc.


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timeliness requirement of the PCRA. See Appellant’s Brief at 4 (“I will start

from the PA Supreme Court’s denial of my Allowance of Appeal and

subsequent filing of my initial timely PCRA petition and all amendments in

order to show and prove petitioner’s timeliness”).

      It is well-settled that the timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). If a petition is untimely, neither an appellate court

nor the PCRA court has jurisdiction to consider the petition. Id. “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” 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. § 9545(b)(1).       Under these exceptions, the petitioner

must plead and prove that: “(1) there has been interference by government

officials in the presentation of the claim; or (2) there exists after-discovered

facts or evidence; or (3) a new constitutional right has been recognized.”

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations

omitted). A PCRA petition invoking one of these statutory exceptions must

“be filed within sixty days of the date the claim first could have been




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presented.”   Gamboa–Taylor, 753 A.2d at 783.         See also 42 Pa.C.S. §

9545(b)(2).

      The Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on November 30, 2011. Appellant did not file a petition

for writ of certiorari with the United States Supreme Court, and as a result,

his judgment of sentence became final 90 days later — on Tuesday,

February 28, 2012.     See U.S. Sup. Ct. R. 13; 42 Pa.C.S. § 9545(b)(3).

Appellant had to file his PCRA petition within one year of that date — that is,

by February 28, 2013 — for it to be timely.        42 Pa.C.S. § 9545(b)(1).

Because Appellant filed the instant petition on December 3, 2015, his

petition is untimely unless he has satisfied his burden of pleading and

proving that one of the enumerated exceptions applies.

      Beyond his generalized argument regarding due process and his

“constitutionally protected right to review,” Appellant assails the PCRA

court’s impropriety and impartiality, seeks a remand and post-conviction

relief, and requests recusal of the PCRA court. However, Appellant fails to

address, discuss, or explain — to plead and to prove — how his PCRA

petition falls within a statutory exception to the PCRA’s time bar. The PCRA

court explained:

             The petition was properly dismissed as being untimely.
      The second PCRA petition was not filed within one year from the
      date the judgment of sentence became final. As a result, one of
      the three exceptions to the timeliness rule, 42 Pa. Cons. Stat. §
      9545(b)(1)(i)-(iii) had to apply and did not. [Appellant] has
      failed to plead an exception much less meet his burden of proof

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     and has failed to prove that the filing period should be extended
     as permitted in the case of the Post Conviction Relief Act, 42 Pa.
     Cons. Stat. Ann. § 9541 et seq. Since the time restrictions
     under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa.
     Cons. Stat. § 9541 et seq., are jurisdictional; this PCRA court
     lacked jurisdiction to address the claims raised in the untimely
     petition.

PCRA Court Opinion, 9/29/16, at 3.

     The record supports the determination of the PCRA court. Accordingly,

because Appellant’s PCRA petition is untimely and he has failed to establish

the applicability of any exception to the statutory time bar, we affirm the

PCRA court’s dismissal of Appellant’s second PCRA petition.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




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