J-S87016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DAVID G. LUDWIG

                            Appellant                  No. 1075 MDA 2016


                Appeal from the PCRA Order Dated May 19, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0005841-2005


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                            FILED JANUARY 13, 2017

        Appellant David G. Ludwig appeals from the order dismissing his

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541–9546.          The PCRA court found the petition untimely and

therefore not within its jurisdiction. We affirm.

        On June 14, 2006, Appellant entered a negotiated guilty plea to two

counts of first-degree murder and one count each of statutory sexual

assault, carrying firearms without a license, and recklessly endangering

another person.1 At the time of the crimes, Appellant was 18½ years old.

The trial court sentenced Appellant to two consecutive mandatory terms of

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502(a), 3122.1, 6106(a)(1), and 2705, respectively.
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life imprisonment for the first-degree murder convictions pursuant to 18

Pa.C.S. § 1102(a)(1), and a consecutive term of nine-and-one-half to

nineteen years’ imprisonment for the remaining charges.            PCRA Ct. Op.,

5/19/16, at 1-3. Appellant did not file a direct appeal.

      On August 17, 2012, Appellant, pro se, filed his first petition for post-

conviction relief. Counsel was appointed, and, concluding that the petition

was untimely, filed a “no merit” letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).               The PCRA court dismissed

Appellant’s first petition as untimely on October 16, 2012.           This Court

affirmed the denial of Appellant’s first petition, Commonwealth v. Ludwig,

No.   1999    MDA   2012    (Pa.   Super.,   July    10,   2013)    (unpublished

memorandum), and the Supreme Court of Pennsylvania denied allocatur,

No. 674 MAL 2013 (Pa., Jan. 7, 2014).

      On March 24, 2016, Ludwig filed the instant PCRA petition, his second,

pro se. On April 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss this petition on the basis that it was untimely and Appellant

had failed to plead any exception to the PCRA’s time bar. On May 6, 2016,

Appellant filed a pro se response, stating, among other things, that his

petition was timely, and invoking the exceptions to the PCRA’s time bar that

are set forth at 42 Pa.C.S. § 9545(b)(ii) and (iii). By an order entered May

19, 2016, the PCRA court dismissed Appellant’s petition as untimely.




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Appellant then mailed to this Court a notice of appeal that is dated June 16,

2016.

        On appeal, Appellant raises the following issues, as stated in his brief:

        Is Appellant, according to the Pa. Constitution, common law
        definitions, and case law a minor and therefore fits into the
        subclass of those defined as a juvenile entitling him to the same
        protections afforded his minor counterparts in recent U.S.
        Supreme Court decisions, specifically “Montgomery v. Louisiana”
        finding “Miller v. Alabama” to be retroactive[?]

        Did Appellant suffer ineffective assistance of trial counsel where
        counsel failed to utilize scientific evidence readily available to
        demonstrate Appellant[’s] diminished capacity?

        The defendant’s 6th and 14th Amendment rights were violated at
        the sentencing phase rendering the plea null and void.

        Did the Appellant have a diminished culpability to negate [mens]
        rea?

        Did the Commonwealth create 2 separate classes prohibiting 18-
        25 year olds from utilizing scientific evidence relied upon in
        Montgomery/Miller and denying them equal protection and due
        process of the law?

        As a new substantive rule of constitutional law barring certain
        mandatory minimums, it is unlawful to withhold the application
        of Alleyne v. United States, 133 S.Ct. 215[1] (2013) to
        Appellant’s mandatory minimum life imprisonment sentence and
        it’s “without parole.”

Appellant’s Brief at 6.

                            This Court’s Jurisdiction

        Before we address Appellant’s issues, we must determine whether

Appellant timely filed his notice of appeal. Although neither party raises this




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issue, we address it sua sponte because it implicates our jurisdiction.

Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998).

      In order for this Court to have jurisdiction, Appellant’s notice of appeal

must have been filed within thirty days of the PCRA court’s order.         See

Pa.R.A.P. 903(a) (time for filing appeal); Cooper, 710 A.2d at 78 (court

lacks jurisdiction if notice of appeal is not timely filed). Under the “prisoner

mailbox rule,” a pro se prisoner’s notice of appeal is deemed filed “on the

date that the appellant deposits the appeal with prison authorities and/or

places it in the prison mailbox.” Commonwealth v. Jones, 700 A.2d 423,

426 (Pa. 1997).    Where the facts concerning the timeliness of a notice of

appeal are in dispute, a remand for an evidentiary hearing may be

necessary. Id. at 426 n.3. “Where, however, the opposing party does not

challenge the timeliness of the appeal and the prisoner’s assertion of

timeliness is plausible, we may find the appeal timely without remand.”

Cooper, 710 A.2d at 79 (citing Jones, 700 A.2d at 426 n.3).

      In Cooper, the proof of service for the notice of appeal stated that the

notice was timely filed, and the court received the notice two days after the

thirty-day period expired. Cooper, 710 A.2d at 79. Further, neither party

raised the issue of the timeliness of the appeal. Id. This Court held that

under those circumstances, there was “plausible” evidence that the notice

was timely, and we therefore could address the merits of the appeal. Id.;

see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.




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2007) (deeming appeal timely based on date on notice of appeal and fact

that court received it three days after thirty-day period expired).

       In this case, the PCRA court’s order dismissing Appellant’s petition was

docketed on May 19, 2016. Because the 30th day fell on Saturday, June 18,

2016, Appellant had until Monday, June 20, 2016, to file a timely notice of

appeal. See 1 Pa.C.S. § 1908 (“Whenever the last day of any [period of time

referred to in any statute] shall fall on Saturday or Sunday . . . such day

shall be omitted from the computation”).

       The trial court docket says that Appellant’s notice of appeal was filed

on June 27, 2016, seven days late. However, the Commonwealth does not

challenge the timeliness of this appeal.2          The certificate of service that

accompanied the notice of appeal is dated June 16, 2016, which is well

within the 30-day filing period.        Appellant mailed the notice to this Court,

rather than the trial court, and it was date-stamped by this Court on June

23, 2016, just three days after the thirty-day period had expired.          Under

these circumstances, we hold that there is “plausible” evidence that

Appellant timely mailed his notice of appeal. See Cooper, 710 A.2d at 79.

       The fact that Appellant mailed the notice of appeal to this Court, rather

than to the trial court, does not deprive this Court of jurisdiction. Appellate

Rule 905(a)(4) provides:         “If a notice of appeal is mistakenly filed in an

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2
  Rather than filing a brief, the Commonwealth opted to rely upon the PCRA
court’s opinion. See Letter, 10/6/16.



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appellate court, . . . the clerk shall immediately stamp it with the date of

receipt and transmit it to the clerk of the court which entered the order

appealed from, and upon payment of an additional filing fee the notice of

appeal shall be deemed filed in the trial court on the date originally filed.” 3

The sequence of events mandated by this rule explains why the notice of

appeal was not filed in the trial court until June 27, 2016.            We therefore

consider Appellant’s notice of appeal timely filed and will address the merits

of his appeal.

                 The Timeliness of Appellant’s PCRA Petition

       The PCRA court dismissed Appellant’s petition as untimely.                 This

Court’s standard of review regarding an order dismissing a petition under

the PCRA is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.            The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-92 (Pa. Super. 2013) (citations and internal quotation marks omitted).

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

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3
 Appellant was granted permission to proceed in forma pauperis. Thus, he
was not required to pay the filing fee.



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of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).4

        We have reviewed Appellant’s brief, the certified record, the relevant

law, and the opinion of the able PCRA court judge, the Honorable David L.

Ashworth.      We discern no error in this case and conclude that Judge

Ashworth’s opinion, entered on May 19, 2016, ably addressed the

untimeliness of Appellant’s PCRA petition. See Barndt, 74 A.3d 185, 191-

92.    Therefore, we affirm on the basis of Judge Ashworth’s well-reasoned

opinion and adopt it as our own. In the event of further proceedings, the

parties shall attach a copy of the PCRA court’s May 19, 2016 opinion to this

memorandum.
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4
    The three exceptions to the timeliness requirement are:

        (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. § 9545(b)(1).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2017




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