J-S69042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 BRANDEN ZURBURG                          :
                                          :
                    Appellant             :   No. 440 MDA 2018

             Appeal from the Order Entered February 5, 2018
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0001585-2001


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                      FILED NOVEMBER 02, 2018

      Branden Zurburg (Appellant) appeals pro se from the trial court’s order

denying his “Petition to Vacate Conviction for Lack of Subject Matter

Jurisdiction, Denial of Consent, and Rescission of Signatures.” We affirm.

      In 2001, Appellant responded to an internet advertisement placed by an

agent from the Pennsylvania Attorney General’s Child Sexual Exploitation Task

Force. Appellant and the agent exchanged emails, and thereafter Appellant

arrived at a Harrisburg area hotel and expressed his intent to engage in sexual

activities with three children under the age of 13.       The agent arrested

Appellant and he was charged with numerous crimes. Appellant was tried by

a jury in 2004. The trial court summarized:

            [Appellant] was convicted of multiple sex crimes against a
      minor in January of 2004 and was sentenced to nine (9) to forty
      (40) years of imprisonment. [Appellant] filed a PCRA petition and
      his direct appeal rights were reinstated in October of 2006. On
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      December 3, 2007, the Superior Court affirmed [Appellant’s]
      judgment of sentence. On April 8, 2009, [Appellant] filed a PCRA
      petition and was appointed counsel. This Court dismissed such
      petition on December 2, 2009. [Appellant] filed a notice of appeal,
      and on September 22, 2010, the Superior Court quashed the
      appeal for untimeliness and failure to comply with appellate rule
      requirements.

             Over seven years later, on November 2, 2017, [Appellant]
      filed a pro se “Petition to Vacate Conviction for Lack of Subject
      Matter Jurisdiction, Denial of Consent, and Rescission of
      Signatures.” This Court denied [Appellant’s] petition on February
      5, 2018, and this appeal followed. [Appellant’s] Statement of
      Matters Complained of on Appeal includes eight points for review,
      most of which are conclusory statements asserting a lack of this
      Court’s subject matter jurisdiction.

Trial Court Opinion, 6/11/18, at 1.

      Preliminarily, we note that rather than treating Appellant’s November 2,

2017 petition as his second petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, the trial court denied Appellant’s petition

because “the petition consists of disorganized thoughts and no analysis or

discussion regarding the issues he is attempting to raise.” Trial Court Opinion,

6/11/18, at 1-2; see also 42 Pa.C.S.A. § 9542 (providing that “[t]he action

established in this subchapter shall be the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for the

same purpose that exist when this subchapter takes effect . . .”);

Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002)

(holding that “any petition filed after the judgment of sentence becomes final

will be treated as a PCRA petition.”).    The trial court subsequently noted,

however, that had it treated Appellant’s petition as a PCRA petition, the



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petition would be untimely and the trial court would lack jurisdiction. Trial

Court Opinion, 6/11/18, at 2 n.1.

      The trial court should have treated Appellant’s petition as his second

PCRA petition. Nonetheless, we agree with the trial court that under the PCRA,

the petition would not merit relief or even jurisdiction because it did not meet

the one-year time restriction of the PCRA, having been filed more than seven

years after the Superior Court’s quashal of Appellant’s first PCRA – from which

Appellant did not seek allowance of appeal with the Supreme Court.

Commonwealth v. Zurburg, 153 MDA 2010 (Pa. Super. Sept. 22, 2010)

(unpublished).

      “Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1079

(Pa. Super. 2010) (quoting Commonwealth v. Robinson, 837 A.2d 1157,

1161 (Pa. 2003)). A petitioner must file a PCRA petition within one year of

the date on which the petitioner’s judgment became final, unless one of the

three statutory exceptions apply:

            (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

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            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). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      We further agree that Appellant has failed to development a meaningful

argument. On appeal, he phrases his issues as follows:

      1. WHETHER THE TRIAL COURT LACKED SUBJECT MATTER
      JURISDICTION TO CHARGE, CONVICT AND SENTENCE
      [APPELLANT]?

      2. WHETHER THE COMMONWEALTH’S FAILURE TO RESPOND TO
      [APPELLANT’S] PETITION TO VACATE CONVICTION FOR LACK OF
      SUBJECT MATTER JURISDICTION, INDICATES THAT THE FACTS
      WITHIN [APPELLANT’s] PETITION ARE TRUE?

      3. WHETHER THE COMMONWEALTH’S FAILURE TO RESPOND TO
      [APPELLANT’S] PETITION TO VACATE CONVICTION FOR LACK OF
      SUBJECT MATTER JURISDICTION, STIPULATE THAT THE
      CONVICTION AND SENTENCE IS VOID AD [sic] INITIO?

      4. WHETHER CONSENT FROM THE GOVERNED MUST EXIST FOR
      ANY GOVERNMENTAL AUTHORITY TO BE EXERTED UPON AN
      INDIVIDUAL?




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      5. WHETHER [APPELLANT] HAS THE RIGHT TO RESCIND HIS
      SIGNATURE FROM ALL COURT DOCUMENTS IF [APPELLANT] WAS
      NOT AFFORDED THE RIGHT TO KNOW THE TRUE NATURE OF THE
      CHARGES?

      6. WHETHER [APPELLANT’S] AFFIDAVIT STIPULATES A PRIMA
      FACIE CASE?

Appellant’s Brief at 4.

      Although he presents six issues, Appellant’s summary of the argument

simply states:

             Appellant avers that the trial court committed fraud upon
      the court when stating that facts. [sic] Appellant also avers that
      the trial court never informed him of the true nature of the charges
      which deprived the trial court of its jurisdiction.

Appellant’s Brief at 6.

      The argument section of Appellant’s brief is not “divided into as many

parts as there are questions to be argued,” in contravention of Pa.R.A.P.

2119(a). Moreover, Appellant’s argument is largely nonsensical. His most

cogent statements are that he “never committed any sex crime against an

actual minor,” and he was convicted of a “victimless crime” because the

Commonwealth “use[d] fictitious entities (kids) . . . to prosecute Appellant.”

See Appellant’s Brief at 7-11. Appellant fails to support his assertions with

citations to legal authority and the record. See Pa.R.A.P. 2119(a) (requiring

that an appellant develop an argument with citation to and analysis of relevant

legal authority).

      In response, the Commonwealth observes that Appellant’s claims are

“unintelligible,” and he “has failed to cite pertinent legal authority or develop



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any cognizable argument.” Commonwealth Brief at 7. The trial court likewise

states that Appellant’s “underlying petition provide[d] no legal authority; he

[did] not cite to any statutes or case law to support his claims, which are

confusing at best.” Trial Court Opinion, 6/11/18, at 1. We agree with the

Commonwealth and the trial court. Although Appellant is pro se, his status

does not relieve him of his duty to properly raise and develop an appealable

claim.   Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996).

This is particularly so because this Court quashed Appellant’s appeal from the

denial of his first PCRA petition on the basis that, inter alia, “Appellant has

waived all issues on appeal by failing to comply with Pa.R.A.P. 2111, et seq,

relative to the format and content of his appellate brief.” Commonwealth v.

Zurburg, 153 MDA 2010 at 1 (Pa. Super. Sept. 22, 2010) (unpublished).

      For these reasons, Appellant is not entitled to relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2018




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