J-S46007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 SHAWNQUINN DEVONTE CRUZ                  :
                                          :
                    Appellant             :   No. 995 EDA 2017

               Appeal from the PCRA Order January 30, 2017
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0003753-2012,
            CP-39-CR-0004054-2012, CP-39-CR-0004061-2012,
                         CP-39-CR-0004636-2011


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                          FILED AUGUST 15, 2018

      Shawnquinn Devonte Cruz appeals pro se from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act. We quash the appeal

as untimely.

      Appellant entered negotiated guilty pleas to aggravated assault,

attempted criminal homicide, and theft-related crimes at the above-

referenced dockets. On October 29, 2013, Appellant was sentenced to serve

an aggregate term of twelve and one-half to forty years incarceration.

Appellant did not file a direct appeal.
J-S46007-18


       Appellant filed a timely pro se PCRA petition, which was ultimately

dismissed.1 Appellant thereafter filed the instant pro se PCRA petition, his

second, on November 14, 2016, asserting ineffective assistance of counsel

and illegality of sentence. The PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without a hearing due to its untimeliness.

Appellant filed a response beyond the twenty-day period to respond indicated

in the notice. Nevertheless, the PCRA court considered both his pro se petition

as well as his pro se response before entering its January 30, 2017 order

dismissing the petition as untimely. On January 31, 2017, the PCRA court

mailed Appellant notice of the January 30, 2017 order. Appellant filed a pro

se notice of appeal, which was docketed on March 6, 2017.

       As a prefatory matter, before we review the issues presented by

Appellant, we must address the timeliness of this appeal because it appears

that Appellant filed the instant notice of appeal beyond the period permitted

by law.       The question of timeliness of an appeal is jurisdictional.

Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.Super. 2000).                Time

limitations on appeal periods are strictly construed and cannot be extended

as a matter of grace. See Commonwealth v. Perez, 799 A.2d 848, 851

(Pa.Super. 2002). The notice of appeal must be filed within 30 days after the

entry of the order from which the appeal is taken. See Pa.R.A.P. 903(a).



____________________________________________


1   Appellant was appointed counsel upon the filing of his first PCRA petition.

                                           -2-
J-S46007-18


“[T]he day of entry shall be the day the clerk of the court . . . mails or delivers

copies of the order to the parties ….” Pa.R.A.P. 108(a)(1). Additionally, under

the prisoner mailbox rule, when a pro se appellant is incarcerated, an appeal

is deemed filed on the date the prisoner deposits the appeal with prison

authorities or places it in a prison mailbox.         See Commonwealth v.

Chambers, 35 A.3d 34, 38 (Pa.Super. 2011). Thus, as the clerk of courts

mailed the dismissal order to Appellant on January 31, 2017, Appellant had

until March 2, 2017, to deposit his notice of appeal with prison authorities or

place it in the prison mailbox.

      Our review of the certified record discloses that Appellant wrote the date

of February 23, 2017 on his notice of appeal and certificate of service.

However, neither of these items is time-stamped, or bears any indicia of

delivery to prison authorities. Nor does the record contain any other evidence

indicating that Appellant placed his notice of appeal in the prison mailbox on

or before March 2, 2017, such as a cash slip or postage markings.

      Accordingly, on January 26, 2018, this Court issued a rule to show cause

why the appeal should not be quashed as untimely filed. Appellant was given

ten days in which to respond to the rule, and advised that if he failed to do

so, his appeal could be quashed or dismissed. Appellant sought an extension

of time to respond to the rule, and was given until April 3, 2018, to respond.

Appellant did not respond. Thus, Appellant did not establish that he provided




                                       -3-
J-S46007-18


his notice of appeal to prison authorities on or before March 2, 2017. On this

basis, we quash the appeal.2

       Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2018




____________________________________________


2  Even if Appellant had provided sufficient proof that his appeal was timely
filed, we would have determined that the PCRA court properly dismissed the
petition as untimely filed. Under the PCRA, any petition “including a second
or subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S. § 9545(b)(1). Here, Appellant’s judgment of
sentence became final on December 2, 2013, when the thirty-day period of
time to file an appeal with our Court expired.2 See 42 Pa.C.S. § 9545(b)(3).
Appellant had until December 2, 2014, to file the instant PCRA Petition, but
did not do so until November 14, 2016. Although Pennsylvania courts may
consider an untimely PCRA petition if the appellant can plead and prove one
of three exceptions set forth under 42 Pa.C.S. § 9545(b)(1), Appellant failed
to plead or prove the applicability of any of the exceptions to the PCRA
timeliness requirements. See 42 Pa.C.S. § 9545(b)(1). Accordingly, the
PCRA court did not err in dismissing Appellant’s second PCRA petition as
untimely filed.


                                           -4-
