J-S16007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                    v.

RONALD D. WEAVER

                           Appellant                No. 932 MDA 2014


                  Appeal from the PCRA Order April 3, 2014
              In the Court of Common Pleas of Franklin County
            Criminal Division at No(s): CP-28-MD-0000143-1984


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                             FILED MAY 07, 2015

      Appellant, Ronald D. Weaver, appeals from the order dismissing his

1997 petition pursuant to the Post Conviction Relief Act (“PCRA”) for lack of

jurisdiction. We affirm.

      In 1984, a jury convicted Weaver of rape, involuntary deviate sexual

intercourse, corruption of the morals of a minor, indecent assault, and

endangering the welfare of children. The trial court subsequently sentenced

Weaver to a term of imprisonment of 10 to 40 years. On direct appeal, this

Court affirmed Weaver’s judgment of sentence, but remanded the case to

the trial court for a hearing on the effectiveness of his appointed appellate

counsel.   This hearing was never held, as Weaver’s request to waive the
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hearing in order to pursue a collateral attack on his conviction was granted

by order dated January 5, 1989.1

       Meanwhile, in 1987, Weaver filed a collateral petition pursuant to the

Post Conviction Hearing Act (“PCHA”), the precursor to the PCRA. On June

3, 1994, after Weaver filed several pro se amendments, the PCHA court

denied all relief sought by Weaver in his PCHA petition. This Court affirmed

the denial, and the Supreme Court of Pennsylvania denied allowance of

appeal on February 1, 1996.

       On September 30, 1996, Weaver filed a petition for writ of habeas

corpus in the United States District Court for the Middle District of

Pennsylvania. The Middle District ordered that the files for Weaver’s case be

transferred for its review.

       On January 16, 1997, Weaver filed the instant petition for relief

pursuant to the PCRA pro se. Shortly thereafter, Weaver filed an addendum
____________________________________________


1
   This Court’s order affirmed the judgment of sentence, remanded for
appointment of new counsel and “an evidentiary hearing as to Appellate
counsel’s alleged ineffectiveness.” Commonwealth v. Weaver, 513 A.2d
1079 (Pa. Super. 1986) (Table) (unpublished memorandum).               In the
memorandum, the panel explains the remand in terms of appellate counsel’s
failure to include certain issues in Weaver’s Rule 1925 statement of matters
complained of on appeal, resulting in waiver of the issue on appeal. These
issues included sufficiency of the evidence for involuntary deviate sexual
intercourse, ineffectiveness of trial counsel for failing to request an alibi
instruction for the jury, and ineffectiveness of trial counsel for failing to
object to the admission of evidence of other crimes. On all other issues, the
panel affirmed on the merits. The order line concludes with a relinquishment
of jurisdiction. The Supreme Court of Pennsylvania denied Weaver’s petition
for allowance of appeal on December 29, 1986.



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to his petition.    On March 26, 1998, the PCRA court continued the PCRA

petition generally, awaiting return of the case files from the Middle District.

The Middle District’s denial of Weaver’s federal habeas corpus petition

became final when the Supreme Court of the United States denied certiorari

on May 19, 2003.

       On January 5, 2004, Weaver filed a “Petition for Writ of Habeas Corpus

Ad Subjiciendum and Petition for Writ of Error – Coram Nobis.”        This one

page document requested that his judgment of sentence be vacated due to

the PCRA court’s failure to address his PCRA petition.     There is no further

activity in the docket entries until February 19, 2008, when Weaver filed a

document entitled “Motion For An Evidentiary Hearing.”

       Immediately following the entry for this document, the docket contains

an entry entitled “CLERK’S NOTE,” dated May 27, 2008. In this note, the

clerk details the Middle District’s failure to return the case files to Franklin

County, and the Middle District’s promise to return the case files promptly.

Since that time, Weaver has proceeded to pursue relief through voluminous

pro se filings with the PCRA court.2 On April 3, 2014, the PCRA court filed an

order dismissing Weaver’s petition with prejudice.         This timely appeal

followed.

____________________________________________


2
  The PCRA court appointed at least three separate attorneys to represent
Weaver on his petition. However, all appointed attorneys were eventually
permitted to withdraw.



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      On appeal, Weaver raises two issues for our review. First, he contends

that the PCRA court erred in dismissing his petition without a hearing. The

PCRA court, in its opinion on appeal, concludes that the 1997 petition was

facially untimely. We agree.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”       Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). “[Our] 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 PCRA court

level.” Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa. 2012) (citation

omitted). “[T]his Court applies a de novo standard of review to the PCRA

court’s legal conclusions.”    Commonwealth v. Spotz, 18 A.3d 244, 259

(Pa. 2011) (citation omitted).

      Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. See Commonwealth v. Williams, 35

A.3d 44, 52 (Pa. Super. 2011), appeal denied, 50 A.3d 121 (Pa. 2012). A

PCRA petition must be filed within one year of the date that the judgment of

sentence becomes final.       See 42 PA.CONS.STAT.ANN. § 9545(b)(1).    “The

PCRA timeliness requirements are jurisdictional in nature and, accordingly, a


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court cannot hear untimely PCRA petitions.” Commonwealth v. Flanagan,

854 A.2d 489, 509 (Pa. 2004) (citation omitted).

      As noted previously, Weaver’s direct appeal contained a procedural

irregularity.   While this Court affirmed the judgment of sentence and

relinquished jurisdiction, it also remanded for a hearing on three issues of

counsels’ ineffectiveness. These issues were not resolved until the trial court

granted Weaver’s request to waive the hearing so that Weaver could pursue

his pending PCHA petition.    In an abundance of caution, we will treat the

date of that order, January 5, 1989, as the date that Weaver’s judgment of

sentence became final. Weaver therefore had until January 5, 1990, to file a

timely petition pursuant to the PCRA, which was in effect in 1997 when

Weaver filed the instant petition. Clearly, Weaver’s 1997 petition does not

meet the one-year timeliness requirement.

      However, the PCRA also provides that first petitions filed within one

year of the effective date of the 1995 amendments to the PCRA are timely.

See Commonwealth v. Lewis, 718 A.2d 1262, 1264 (Pa. Super. 1998).

Weaver’s 1997 petition does not qualify as his 1997 petition counts as his

second, due to his previous PCHA petition.     See id., at 1262 (Pa. Super.

1998) (noting that PCHA petitions are considered previous petitions under

the PCRA, but concluding that a previous petition that successfully sought

reinstatement of direct appeal rights nunc pro tunc would not count as a first

petition).


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      As the PCRA petition at issue here was not timely, “the courts have no

jurisdiction to grant [Weaver] relief unless he can plead and prove that one

of the exceptions to the time bar provided in 42 [PA.CONS.STAT.ANN.] §

9545(b)(1)(i)-(iii) applies.”   Commonwealth v. Pursell, 749 A.2d 911,

914-915 (Pa. 2000). See also Commonwealth v. Wilson, 824 A.2d 331,

335 (Pa. Super. 2003) (en banc) (“Since Appellant’s PCRA petition is

untimely, our review focuses on whether Appellant has pled and proven that

one of the three limited exceptions to the timeliness requirements of the

PCRA apply.”).

      The PCRA provides for three general exceptions to the timeliness

requirements.

      (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:

            (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.

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        (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)(1)-(2).

      Weaver’s 1997 petition does not address any of these exceptions. In

the multitude of documents Weaver has filed since, he has occasionally

argued that his petition was timely, but does not clearly articulate any

reason why an exception would apply.          Weaver makes no argument

regarding the recognition of a retroactively applied new right, and therefore

subsection (b)(1)(iii) does not apply. With respect to subsections (b)(1)(i)

and (ii), we note that the claims contained in Weaver’s 1997 petition are all

present in his previous PCHA petition and direct appeal. Weaver therefore

cannot satisfy that these claims were not known to him until 60 days before

he filed the 1997 petition. Nor can he establish that these claims were not

presented to the courts, as his PCHA petition was addressed on the merits

by the PCHA court and affirmed by this court on appeal.       As none of the

PCRA’s timeliness exceptions can apply to Weaver’s 1997 petition, we

conclude that the PCRA court correctly found that it did not have jurisdiction

to entertain the petition.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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