J-S73017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 FLOYD EDWARD PATTERSON                   :
                                          :
                     Appellant            :    No. 1952 MDA 2018

          Appeal from the PCRA Order Entered November 13, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0000903-2014


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 22, 2020

     Floyd Edward Patterson appeals from the order, entered in the Court of

Common Pleas of Berks County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon careful

review, we affirm.

     On January 11, 2014, Robert Mohler, a homeless man, sought and

received permission to sleep in a Reading, Pennsylvania laundromat. Shortly

before   midnight,   Patterson   and   three   other   individuals   entered   the

laundromat, beat Mohler, and stole his cell phone. The laundromat’s security

cameras recorded the entire incident. On June 15, 2015, a jury convicted

Patterson of aggravated assault, simple assault, recklessly endangering

another person, and conspiracy to commit the foregoing offenses. On June

17, 2015, the court sentenced Patterson to an aggregate term of fifteen to
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forty years’ incarceration.       Patterson timely appealed, and on August 23,

2016, this Court affirmed his judgment of sentence.               Commonwealth v.

Patterson, 1307 MDA 2015 (Pa. Super. filed Aug. 23, 2016) (unpublished

memorandum). Patterson did not petition our Supreme Court for allowance

of appeal.

       On June 20, 2017, Patterson filed a pro se PCRA petition. The PCRA

court appointed counsel, who filed an amended PCRA petition. Following a

hearing, the PCRA court dismissed Patterson’s petition on February 13, 2018.

On March 15, 2018, Patterson filed a notice of appeal. On May 14, 2018, this

Court dismissed Patterson’s appeal for failing to comply with Pa.R.A.P. 3517.

See Pa.R.A.P. 3517 (requiring appellant complete and return docketing

statement     form;     imposing     dismissal   as   potential    consequence   for

noncompliance). On October 4, 2018, Patterson filed the instant, pro se PCRA

petition. On October 17, 2018, the PCRA court provided Patterson with notice

of its intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P.

907. On November 13, 2018, the PCRA court dismissed Patterson’s petition

as untimely.1 Patterson timely filed a notice of appeal.
____________________________________________


1 It is unclear whether Patterson timely filed either his response to the PCRA
court’s notice of intention to dismiss or his Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Patterson had until November
6, 2018, to respond to the PCRA court’s notice of intention to dismiss. He filed
his response, dated November 6, 2018, on November 8, 2018. He did not
offer any evidence of the date he placed his response in the hands of prison
authorities.




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       Preliminarily, we consider whether the PCRA court had jurisdiction to

hear Patterson’s petition.      See 42 Pa.C.S.A. § 9545(a) (establishing original

jurisdiction over PCRA petitions); see also Commonwealth v. Taylor, 933


____________________________________________


On November 29, 2018, the PCRA court issued an order for Patterson to file a
Rule 1925(b) statement by December 19, 2018. On December 17, 2018,
Patterson filed a request for an extension to file his Rule 1925(b) statement.
On December 26, 2018, the PCRA court granted Patterson a 21-day extension
to file his 1925(b) statement, giving him until January 16, 2019. On January
23, 2019, the PCRA court filed a statement in lieu of a Rule 1925(a) opinion
addressing Patterson’s failure to timely file a Rule 1925(b) statement. On
January 24, 2019, the PCRA court received Patterson’s Rule 1925(b)
statement, dated January 14, 2019, but filed January 22, 2019. He did not
offer any evidence of the date he placed his Rule 1925(b) statement in the
hands of prison authorities. The trial court subsequently filed a Rule 1925(a)
opinion, noting Patterson’s lack of proof regarding the date of filing, but
addressing the issues raised therein.

Both filings must be viewed through the lens of the prisoner mailbox rule,
which provides “a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing.” Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa. Super. 2011). It is incumbent upon the appellant to
establish the date he placed a court filing in the hands of prison authorities.
See id. at 40 (allocating burden of proof regarding date to appellant).
Ordinarily, the appropriate course of action would be to remand the matter to
the PCRA court to make a determination as to the timeliness of Patterson’s
response to the PCRA court’s notice of intent to dismiss and his Rule 1925(b)
statement. See id. This Court, however, deemed it appropriate to dispose of
a PCRA petitioner’s appeal, in spite of a lack of clarity regarding the timeliness
of filings under the prisoner mailbox rule, where the appellant has failed to
plead and prove an exception to the PCRA time bar. See id. (“[T]his matter
should be remanded . . . for the PCRA court to make a determination as to
the timeliness of the filing of his PCRA petition. [However, i]n light of our
disposition of [Appellant’s] substantive argument . . . we conclude that it
would be futile to do so.”). As discussed supra, it would be futile to remand
the instant matter, as Patterson failed to plead or prove an exception to the
time bar in his PCRA petition.




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A.2d 1035, 1038 (Pa. Super. 2007) (“[N]o court has jurisdiction to hear an

untimely PCRA petition.”). A petition for relief under the PCRA must be filed

within one year of the date the judgment of sentence becomes final unless

the petitioner pleads and proves an exception to the time for filing the petition,

as set forth at 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii). 2 A PCRA petition

invoking one of these statutory exceptions must be filed within 60 days of the

date the claims could have been presented.              See Commonwealth v.

Hernandez, 79 A.3d 649, 651-52 (Pa. Super. 2013) (citations omitted); see

also 42 Pa.C.S.A. § 9545(b)(2).3

____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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).

3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
to enlarge the time in which a petitioner may invoke a PCRA time-bar
exception from 60 days to one year from the date the claim arises. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
However, the amendment applies only to claims arising on December 24,
2017, or thereafter. Id. at § 3. We look to the claims raised in Patterson’s



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       Patterson’s judgment of sentence became final on September 22, 2016,

when the period for seeking review with our Supreme Court expired. See 42

Pa.C.S.A. § 9545(b)(3) (“[A] judgment becomes final at the conclusion of

direct review, including discretionary review in . . . the Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”); see also

Pa.R.A.P. 1113(a) (allowing 30 days from entry of order to file petition for

allowance of appeal with Pennsylvania Supreme Court). Therefore, Patterson

had one year, until September 22, 2017, to file a timely PCRA petition. The

instant petition, filed on October 4, 2018, is facially untimely.         Unless

Patterson pleads and proves the application of an enumerated exception to

the PCRA time bar, the PCRA court lacked jurisdiction to address the merits of

his claims.     See Taylor, supra at 1038; see also Commonwealth v.

Beasley, 741 A.2d 1258, 1261–62 (Pa. 1999) (“The statute makes clear that

where, as here, the petition is untimely, it is the petitioner’s burden to plead




____________________________________________


PCRA petition in evaluating its timeliness because his appellate brief fails to
advance any of the claims raised below. See Brief of Appellant, at 7 (stating
issues concerning timeliness; abandoning underlying issues from petition);
see also 42 Pa.C.S.A. § 9545(b)(1) (requiring petition allege and petitioner
prove exception to time bar). Patterson’s petition asserts various illegal
activities took place prior to and during trial, and the ineffectiveness of trial
counsel. See PCRA Petition, 10/4/18, at 7–27 (listing claims); see also
Notice of Intention to Dismiss, 10/17/18, at 2–3 (summarizing the PCRA
court’s understanding of Patterson’s claims). Patterson’s claims arose during
trial, which concluded in 2015; consequently, the 60 day time-bar applies.
See 42 Pa.C.S.A. § 9545(b)(2).

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in the petition and prove that one of the exceptions applies”) (citing 42

Pa.C.S.A. § 9545(b)(1)) (emphasis added).

      None of the claims raised in Patterson’s facially untimely PCRA petition

invokes an exception under section 9545(b)(1); consequently, all of his claims

are time-barred. See PCRA Petition, 10/4/18, at 7–27 (listing claims; lacking

any reference to exceptions enumerated under section 9545(b)(1)); see also

Beasley, supra at 1261–62.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2020




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