J-S38036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHAN HOWARD DENEAU                       :
                                               :
                       Appellant               :   No. 491 MDA 2020

             Appeal from the PCRA Order Entered February 10, 2020
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0000853-2009


BEFORE:      KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED: AUGUST 31, 2020


        Appellant Nathan Howard Deneau appeals pro se from the Order entered

on February 10, 2020, in the Court of Common Pleas of Franklin County

dismissing as untimely his third petition filed pursuant to the Post Conviction

Relief Act (PCRA).1 We affirm.

        On February 9, 2010, following a jury trial, Appellant was convicted of

one count each of Robbery and Theft by Unlawful Taking.2 On March 17, 2010,

Appellant was sentenced to an aggregate term of sixty-six (66) months to one

hundred forty-four (144) months in prison. On August 26, 2010, Appellant

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*   Former Justice specially assigned to the Superior Court.
1   42 Pa.C.S.A. §§ 9541-9546.
2   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3951(a), 901, respectively.
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filed a notice of appeal with this Court, and on March 7, 2011, we affirmed his

convictions. Appellant did not seek review from the Pennsylvania Supreme

Court; therefore, his convictions became final on April 6, 2011.3

       Appellant filed his first PCRA petition on October 13, 2011, and the PCRA

court denied the same on October 25, 2011.           On December 19, 2011,

Appellant filed a second PCRA petition. That petition was denied on September

18, 2012, and this Court affirmed on July 16, 2013. A second petition followed

on June 30, 2014, and subsequently was denied on September 10, 2014.

       Appellant filed what he titled as a Motion to Modify Sentence on

December 20, 2019, wherein he claimed his actual innocence in that no

robbery occurred on April 22, 2009. The PCRA court treated this filing as a

PCRA petition and issued its notice of its intent to dismiss the petition without

a hearing pursuant to Pa.R.Crim.P. 907(1) on January 13, 2020. Appellant

filed his objection to the Notice on January 31, 2020, wherein he averred he

is innocent in that “even though he has been time bared, there stands a

gateway through which he can successfully pass with his claim of ‘actual

innocence’ which is excused from the procedural bar of the statute of

limitations under the miscarriage of justice exception.”      See Objection to




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3 Pa.R.A.P. 903(a) (notice of appeal shall be filed within thirty (30) days after
the entry of the order from which the appeal is taken).



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Intention to Dismiss, January 31, 2020, at 1-2 ¶¶ 1, 5. The PCRA court denied

Appellant’s motion in its Order entered on February 10, 2020.

       Appellant timely filed his Notice of Appeal.4     The PCRA court did not

order, and Appellant did not file, a concise statement of matters complained

of on appeal pursuant to Pa.R.A.P. 1925.         The parties have filed appellate

briefs; however, in violation of the Pennsylvania Rules of Appellate Procedure,

Appellant does not present a clear statement of questions for this Court to

consider in his pro se brief.

       As a prefatory matter, although this Court is willing to construe liberally

materials filed by a pro se litigant, pro se status generally confers no special

benefit upon an appellant. Accordingly, a pro se litigant must comply with the


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4      The prisoner mailbox rule allows a pro se and incarcerated individual to
have his or her appeal deemed “filed” on the date he or she deposits the
appeal with prison authorities, and this Court may accept “any reasonably
verifiable evidence” that such was the case. Commonwealth v. Jones, 700
A.2d 423, 426 (Pa. 1997) Smith v. Pennsylvania Board of Probation and
Parole, 683 A.2d 278 (Pa. 1996). As Appellant is both pro se and
incarcerated, he is a beneficiary of the prisoner mailbox rule.
       The certified docket reflects that Appellant’s pro se notice of appeal was
filed on March 16, 2020. The record also indicates the Clerk of Court served
Appellant with a copy of the Order on February 10, 2020. Thus, the last date
upon which a notice of appeal could have been timely filed was March 11,
2020. See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the
clerk of courts mails or delivers copies of the order to the parties); Pa.R.A.P.
903(a). Appellant’s handwritten Order Appealing Decision is dated March 11,
2020, and the notice was sent with a postage date of March 12, 2020.
Therefore, we find the appeal was timely filed under the prisoner mailbox rule.




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procedural rules set forth in the Pennsylvania Rules of the Court. Therefore,

this Court may quash or dismiss an appeal if an appellant fails to conform with

the requirements set forth in the Pennsylvania Rules of Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa.Super. 2003), appeal

denied, 879 A.2d 782 (Pa. 2005) (citations omitted) (emphasis added).

Nevertheless, in the interest of justice we will address the argument that

reasonably can be discerned from this defective brief. See id. Essentially,

Appellant asserts the surveillance video presented at trial as well as the

“written record” evince that he committed no robbery, although the court

refused to credit such evidence. Before we may consider the merits of this

claim, we must determine whether the instant PCRA petition was timely filed.

      Our standard of review for the dismissal of a PCRA petition is limited to

“whether the record supports the PCRA court’s determination and whether the

PCRA court’s decision is free of legal error.” Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa.Super. 2014) (citation omitted).        It is well-settled that “the

timeliness   of   a   PCRA   petition    is   a   jurisdictional   [pre-]requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super. 2015) (citation

omitted). “A PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.”

Id. (citation omitted). A judgment is final “at the conclusion of direct review,

including discretionary review in the Supreme Court of the United States and




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the Supreme Court of Pennsylvania, or at the expiration of time for seeking

the review.” Id. (quoting 42 Pa.C.S.A. § 9545(b)(3)).

       Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three statutory exceptions:

       (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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).            A petition invoking any one of the

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).5

       Appellant has not attempted to plead, let alone prove, one of the

aforementioned exceptions to the PCRA time bar.              Moreover, he simply

reiterates claims he previously has, or could have, presented on direct appeal

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5 Until recently, a petition invoking an exception was required to be filed within
sixty days of the date the claim could have been presented. However, 42
Pa.C.S.A. § 9545(b)(2) has been amended to allow petitioners one year to
present claims.



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or in a timely PCRA petition. Because Appellant failed to plead and prove a

statutory exception to the time bar, the PCRA court properly determined that

his instant petition is untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2020




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