J-A10021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GREGORY L. RICKS

                            Appellant               No. 1331 MDA 2014


                    Appeal from the PCRA Order July 2, 2014
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001012-2008


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                             FILED APRIL 01, 2015

       Appellant, Gregory L. Ricks, appeals from the July 2, 2014 order,

dismissing as untimely his fourth petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         After careful

review, we affirm.

       We summarize the relevant procedural history of this case as follows.

On January 20, 2009, Appellant was convicted by a jury of one count each of

possession of a firearm prohibited, receiving stolen property, possession of a

controlled substance, and delivery of a controlled substance.1 On March 13,

2009, the trial court sentenced Appellant to an aggregate term of 7¼ to

14½ years’ imprisonment. Appellant filed a timely notice of appeal, and on
____________________________________________
1
  18 Pa.C.S.A. §§ 6105(a)(1), 3925(a), 35 P.S. §§ 780-113(a)(16), and
780-113(a)(30), respectively.
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March     4,   2010,     this   Court    affirmed   the   judgment   of   sentence.

Commonwealth v. Ricks, 996 A.2d 554 (Pa. Super. 2010) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal in

our Supreme Court. Appellant thereafter filed three PCRA petitions, none of

which have garnered relief.2

       On April 15, 2014, Appellant filed his fourth pro se PCRA petition.3 The

PCRA court entered an order and opinion on May 20, 2014, notifying

Appellant of its intent to dismiss his PCRA petition as untimely without a

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant

did not file a response, and the PCRA court entered a final order dismissing


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2
  Appellant timely filed his first PCRA petition on April 22, 2010. It was
dismissed on August 10, 2010, but Appellant did not appeal. Instead,
Appellant filed a second timely PCRA petition on December 29, 2010. The
PCRA court dismissed said petition on May 3, 2011. This Court affirmed that
order on February 21, 2012, and our Supreme Court denied Appellant’s
allocatur petition on October 29, 2012. Commonwealth v. Ricks, 46 A.3d
822 (Pa. Super. 2012) (unpublished memorandum), appeal denied, 55 A.3d
523 (Pa. 2012). Appellant filed his third PCRA petition on November 14,
2012, which was dismissed by the PCRA court on January 22, 2013.
Appellant filed a notice of appeal, which this Court quashed by an order
entered on June 18, 2013.
3
   Although Appellant’s PCRA petition was file-stamped on April 28, 2014,
under the prisoner mailbox rule, “a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation
omitted), appeal denied, 46 A.3d 715 (Pa. 2012). In this case, the certified
record contains the envelope in which Appellant mailed his PCRA petition,
which bears a postmark date of April 15, 2014. As a result, we treat April
15, 2014 as the filing date.




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his fourth PCRA petition on July 2, 2014. On August 4, 2014, Appellant filed

a pro se notice of appeal.4

        On appeal, Appellant presents the following six issues for our review.

              1.     Whether counsel was ineffective for failing to
                     raise the issue that the [e]vidence was
                     insufficient to sustain a guily [sic] verdict and
                     for failing to raise the issue of whether the
                     verdict. [sic] was against the weight of the
                     evidence?

                                               …

              2.     Whether the [trial c]ourt abused       it’s [sic]
                     discretion in imposing a consecutive   sentence
                     for delivery and receiving stolen      property,
                     resulting in an aggregate sentence     that was
                     manifestly excessive?

              3.     Whether      layered    ineffectiveness     [sic]
                     assistance of counsel existed[?]

              4.     Whether [a] Brady[5] violation occurred in [an]
                     illegal search  and     seizure    of   alleged
                     [e]vidence?

              5.     Whether [the] exclusion of African Americans
                     impaneled in jury selection violated [t]he
                     [Sixth] Amendment?



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4
 We note generally a notice of appeal must be filed within 30 days of the
entry of the order from which the appeal is taken. Pa.R.A.P. 903(a).
However, the certified record contains the envelope in which Appellant
mailed his notice of appeal, which bears a postmark date of July 31, 2014.
As a result, pursuant to the prisoner mailbox rule, Appellant’s notice of
appeal was timely filed. See Chambers, supra.
5
    Brady v. Maryland, 373 U.S. 83 (1963).



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               6.    Whether counsel was ineffective for failing to
                     suppress gun paraphernalia [a]nd alleged
                     drugs on the grounds of a violation [sic] that
                     they are a violation of [Appellant]’s Fourth
                     Amendment rights[?]

Appellant’s Brief at 5.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial    of   PCRA   relief,   we   examine    whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”          Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).            “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”             Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      Before we may address the merits of Appellant’s arguments, we must

first consider the timeliness of Appellant’s PCRA petition because it

implicates     the   jurisdiction     of   this   Court   and   the   PCRA    court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

omitted).      Pennsylvania law makes clear that when “a PCRA petition is


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untimely, neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted), appeal denied, 101 A.3d 103 (Pa. 2014). The “period for

filing a PCRA petition is not subject to the doctrine of equitable tolling;

instead, the time for filing a PCRA petition can be extended only if the PCRA

permits it to be extended[.]” Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014) (internal quotation marks and citation omitted), cert. denied, Ali v.

Pennsylvania, 135 S. Ct. 707 (2014).          This is to “accord finality to the

collateral review process.”   Commonwealth v. Watts, 23 A.3d 980, 983

(Pa. 2011) (citation omitted).      “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.A. § 9545(b)(1)(i), (ii), and (iii), are met.”      Commonwealth v.

Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (citation omitted).           The PCRA

provides, in relevant part, as follows.


            § 9545. Jurisdiction and proceedings

                                          …

            (b) Time for filing petition.—

                  (1) Any petition under this subchapter,
                  including a second or subsequent petition, shall
                  be filed within one year of the date the
                  judgment becomes final, unless the petition
                  alleges and the petitioner proves that:




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                       (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.

                 (2) Any petition invoking an exception
                 provided in paragraph (1) shall be filed within
                 60 days of the date the claim could have been
                 presented.

                                     …

42 Pa.C.S.A. § 9545(b).

     In the case sub judice, Appellant was sentenced on March 13, 2009,

this Court affirmed the judgment of sentence on March 4, 2010, and

Appellant did not file a petition for allowance of appeal with our Supreme

Court. Therefore, Appellant’s judgment of sentence became final on April 5,




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2010, when the filing period for an allocatur petition expired.6                  See 42

Pa.C.S.A.    § 9545(b)(3)      (stating,       “a   judgment    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[]”); Pa.R.A.P. 1113(a) (stating, “a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days after the entry of the order of the Superior

Court … sought to be reviewed[]”). As a result, Appellant had until April 5,

2011 to timely file a PCRA petition. Appellant’s instant petition was filed on

April 15, 2014, rendering it patently untimely.

       Furthermore, Appellant does not argue in his brief nor in his PCRA

petition that any of the enumerated time-bar exceptions applies.                   As this

Court has often stated, “[t]he petitioner has the burden to plead in the

petition    and    subsequently       to   prove       that    an   exception     applies.”

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

omitted), appeal denied, 944 A.2d 756 (Pa. 2008); accord Commonwealth

v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013). Therefore, Appellant has




____________________________________________
6
  We note that the 30th day was Saturday, April 3, 2010. When computing
the 30-day filing period “[if] the last day of any such period shall fall on
Saturday or Sunday … such day shall be omitted from the computation.” 1
Pa.C.S.A. § 1908. Therefore, the 30th day for Appellant to file a timely a
petition for allowance of appeal was on Monday, April 5, 2010.



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failed to carry his burden, and the PCRA court lacked jurisdiction to consider

the merits of any of the issues raised in his petition. See Lawson, supra.

      Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s fourth PCRA petition as untimely filed.    Accordingly,

the PCRA court’s July 2, 2014 order is affirmed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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