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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,   :                 IN THE SUPERIOR COURT OF
                                :                      PENNSYLVANIA
                                :
              v.                :
                                :
JOSHUA HERBERT WALTER WESTOVER, :
                                :
                  Appellant     :
                                :                 No. 1627 WDA 2015

                  Appeal from the PCRA Order January 2, 2014
       in the Court of Common Pleas of Jefferson County Criminal Division
                        at No(s): CP-33-CR-0000402-2010

BEFORE: BENDER, P.J.E., PANELLA, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                      FILED APRIL 12, 2016

        Appellant, Joshua Herbert Walter Westover, appeals pro se from the

order entered in the Jefferson County Court of Common Pleas dismissing his

third petition filed pursuant to the Post Conviction Relief Act 1 (“PCRA”) as

untimely. We affirm.

        On January 10, 2011, Appellant pleaded guilty to two counts each of

indecent assault and corruption of minors.2 On April 6, 2011, the trial court

sentenced Appellant to five to ten years’ imprisonment followed by ten

years’ probation.    Appellant did not file a direct appeal.   On December 5,

2011, Appellant filed his first PCRA petition, pro se.         The PCRA court

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 3126(a)(7), 6301(a)(1).
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appointed counsel.    Appellant filed a counseled motion to withdraw his

petition on July 19, 2012, which the PCRA court granted the same day.

Appellant filed a second pro se petition on August 20, 2012. The PCRA court

issued a Pa.R.Crim.P. 907 notice of intent to dismiss on August 23, 2012,

and dismissed the petition on November 20, 2012.3            Appellant did not

appeal.

      On December 5, 2013, Appellant filed a third pro se PCRA petition.

The PCRA court issued a Rule 907 on December 10, 2013, and dismissed

Appellant’s petition on January 2, 2014.4 Appellant filed a timely notice of

appeal on January 28, 2014.5 On March 27, 2014, the trial court directed

Appellant to file a concise statement of errors complained of on appeal


3
   The PCRA court explained that due to a “clerical oversight” it did not timely
file its order to dismiss. Appellant filed a third PCRA petition, on November
5, 2012, which the PCRA court considered as a response to its Rule 907
notice. PCRA Ct. Order, 11/20/12.
4
  Appellant filed a motion to amend his petition on January 2, 2014. The
PCRA court filed a supplemental order denying the motion because “[t]he
averments contained in that document do not alter the [PCRA c]ourt’s earlier
analysis[.]” Supplemental Order, 1/2/14.
5
  Appellant’s notice of appeal was filed on February 21, 2014, outside the
30-day period for filing an appeal.      See Pa.R.A.P. 903.       Appellant is
incarcerated and dated his notice January 28, 2014. The trial court did not
make a finding on timeliness.       Further, the Commonwealth does not
challenge the timeliness of the appeal. Thus, we deem the notice of appeal
timely filed. See Commonwealth v. Jones, 700 A.2d 423, 425-26 (Pa.
1997) (discussing prisoner mail box rule and noting that courts are “inclined
to accept any reasonably verifiable evidence of the date the prisoner
deposits the appeal with prisoner authorities” including attesting to the date
of deposit).



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pursuant to Pa.R.A.P. 1925(b) within twenty-one days.        Order, 3/27/14.

Appellant did not file a Rule 1925(b) statement.

              Our jurisprudence is clear and well-settled, and
           firmly establishes that: Rule 1925(b) sets out a
           simple bright-line rule, which obligates an appellant
           to file and serve a Rule 1925(b) statement, when so
           ordered; any issues not raised in a Rule 1925(b)
           statement will be deemed waived; the courts lack
           the authority to countenance deviations from the
           Rule’s terms; the Rule’s provisions are not subject to
           ad hoc exceptions or selective enforcement;
           appellants and their counsel are responsible for
           complying with the Rule’s requirements; Rule 1925
           violations may be raised by the appellate court sua
           sponte,[6] . . . . “[I]n order to preserve their claims
           for appellate review, [a]ppellants must comply
           whenever the trial court orders them to file a
           Statement of Matters Complained of on Appeal
           pursuant to Pa.R.A.P. 1925. Any issues not raised in
           a Pa.R.A.P. 1925(b) statement will be deemed
           waived.”     [Commonwealth v. Lord,] 719 A.2d
           [306,] 309 [Pa. 1998].

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).

     Appellant failed to file a court-ordered Rule 1925(b) statement, and

has thus waived review of his claims.7 See id.

     Order affirmed.


6
 The PCRA court raised the violation in its Rule 1925(a) opinion. PCRA Ct.
Op., 10/13/15, at 1.
7
  We note Appellant’s judgment of sentence was final on May 6, 2011, and
the instant petition is facially untimely. See Pa.R.A.P. 903; 42 Pa.C.S.
§ 9545(1), (3).     Appellant’s PCRA petition did not plead any of the
exceptions to the jurisdictional time-bar.    See Appellant’s PCRA Pet.,
12/5/13, at 1-8; 42 Pa.C.S. §9545(b)(1)(i)-(iii). Accordingly, Appellant
would not be entitled to relief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/12/2016




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