J-S05023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
            v.                           :
                                         :
GREGORY LEE WILSON,                      :
                                         :
                        Appellant        :     No. 902 WDA 2014


            Appeal from the PCRA Order Entered May 12, 2014,
             In the Court of Common Pleas of Warren County,
            Criminal Division, at No. CP-62-CR-0000043-2010.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 04, 2015

      Appellant, Gregory Lee Wilson, appeals pro se from the order entered

on May 12, 2014, in the Warren County Court of Common Pleas that denied

his second petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546. We affirm.

      The PCRA court set forth the procedural history of this case as follows:

     The Commonwealth charged [Appellant] at Warren County
     docket number CR 43 of 2010 with one (1) count of “Failure to
     Comply With Registration of Sexual Offenders Requirements”,
     and at docket number CR 117 of 2010 with two (2) counts
     “Possession With Intent to Deliver [a controlled substance],” four
     (4) counts “Criminal Use of a Communications Facility,” and one
     (1) count “Possession — Small Amount of Marijuana.” On March
     29, 2010, [Appellant] pled guilty to one (1) count “Failure to
     Comply with Registration of Sexual Offenders Requirement” at
     docket number CR 43 of 2010 and one (1) count “Possession
     With Intent to Deliver [a controlled substance]” at docket
     number CR 117 of 2010. The District Attorney moved to nolle
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     prosqui [sic] the remaining charges. This Court sentenced
     [Appellant] on April 16, 2010 at CR 43 of 2010, at Count one (1)
     to inter alia “stand committed to a State Correctional Institution
     for a minimum period of fifty (50) months to a maximum period
     of one hundred twenty (120) months,” and at Count two (2) of
     CR 117 of 2010 to inter alia, “stand committed to a State
     Correctional Institution for a minimum period of fifteen (15)
     months to a maximum period of thirty (30) months, to run
     concurrently with the sentence entered at CR 43 of 2010.”

            [Appellant] filed a Motion for Reconsideration of Sentence
     which this Court denied on May 14, 2010. ... [Appellant] filed a
     pro-se “Motion for Post Conviction Collateral Relief” on April 26,
     2010 and this Court subsequently appointed Joan M. Fairchild,
     Esquire as PCRA counsel on May 27, 2010. Counsel filed an
     “Amended Petition For Post Conviction Collateral Relief” on
     August 4, 2010. The Court issued an Order denying [Appellant’s]
     PCRA petition on January 11, 2011. [Appellant] filed a timely
     Notice of Appeal as to his first PCRA [petition] on February 4,
     2011. The Superior Court affirmed the decision of this Court on
     July 27, 2011. [Appellant] than filed a [pro se] “Motion For
     Arrest of Judgment” on September 7, 2012. [After determining
     that Appellant had been abandoned by counsel in his efforts to
     petition for allowance of appeal to the Pennsylvania Supreme
     Court, the PCRA court ordered counsel to petition for allowance
     of appeal in an order filed on September 11, 2012]. The
     Pennsylvania Supreme Court declined to hear [Appellant’s]
     appeal [from the Superior Court’s affirmance of the denial of
     PCRA relief] on July 2, 2013. [Appellant] filed a subsequent
     “Petition For Post Conviction Relief pursuant To The Post
     Conviction Relief Act” on March 21, 2014.

PCRA Court Opinion, 4/15/14, at 1-2.1



1
   While not appearing in the docket entries or the record certified to this
Court on appeal, the PCRA court, Appellant, and the Commonwealth note
that Appellant filed a petition for writ of certiorari with the United States
Supreme Court from the Pennsylvania Supreme Court’s denial of allowance
of appeal. PCRA Court Pa.R.A.P. 1925(a) Opinion, 7/8/14, at 2; Appellant’s
Brief at 8; and the Commonwealth’s Brief at 6. Despite its absence from the
certified record, we take judicial notice of the fact that the United States

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      In an order filed on April 15, 2014, the PCRA court notified Appellant

of its intent to dismiss his PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907.    The PCRA court then dismissed Appellant’s petition in an

order dated May 12, 2014. This timely appeal followed.

      On appeal, Appellant raises the following issues:

      1. Whether the PCRA Court erred in denying appellant’s petition
      brought pursuant to the Post-Conviction Relief Act (PCRA) as
      ‘untimely’ based on an ‘erroneous’ starting and ending point in
      the ‘tolling’ of appellant’s first and subsequent PCRA Petitions.

      2. Whether the PCRA Court erred in denying appellant’s PCRA
      petition as ‘untimely’ by erroneously entertaining the First
      petition which was filed ‘Prematurely.’

      3. Whether the PCRA Court erred in dismissing appellant’s
      Amended PCRA Petition as ‘untimely,’ which presented for the
      first time after-discovered claims of multiple instances of “Fraud
      Upon The Court” which are clear exceptions to the PCRA Rules.

Appellant’s Brief at 3.

      Our standard of review of an order denying PCRA relief is whether the

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

court’s decision is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d

479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed

unless there is no support for them in the certified record.       Id. (citing

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001)).


Supreme Court denied Appellant’s writ of certiorari on December 9, 2013.
Wilson v. Pennsylvania, ___ U.S. ___, 134 S.Ct. 788 (2013).

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       In the present case, all of Appellant’s issues relate to his assertion that

the March 21, 2014 PCRA petition, the denial of which underlies the instant

appeal, should be considered timely.          For the reasons that follow, we

disagree.

       The timeliness of a PCRA petition is a jurisdictional threshold and may

not be disregarded in order to reach the merits of the claims raised in a

PCRA petition that is untimely. Commonwealth v. Murray, 753 A.2d 201,

203 (Pa. 2000).      In order for a first or subsequent PCRA petition to be

timely, a petitioner must file his PCRA petition within one year of the date

his judgment of sentence becomes final.          42 Pa.C.S. § 9545(b)(1).       A

judgment of sentence “becomes final at the conclusion of direct review,

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

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

the review.” 42 Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), are met.2 A petition invoking one of these exceptions must be filed


2
    The 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;

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within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2).     In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      Here, Appellant correctly points out that the PCRA court erred in

calculating the date upon which his judgment of sentence became final. As

we explain in more detail below, Appellant’s judgment of sentence became

final on June 13, 2010, and not May 16, 2010, as the PCRA court stated.

Appellant’s Brief at 13; PCRA Court Opinion, 4/15/14, at 2.         However,

Appellant argues that his first PCRA petition, which he filed pro se while his

counseled post-sentence motion was pending, was premature and allegedly

tolled the period in which he could file a PCRA petition. Appellant’s Brief at

17-22.




      (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)(i), (ii), and (iii).


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      Appellant’s claims are meritless.       Appellant ignores the fact that he

was represented by counsel at all relevant times during the litigation of his

first PCRA petition, despite the initial pro se filing of his first PCRA petition.

Appellant fails to identify how his rights were affected by this premature pro

se filing. The PCRA court appointed new counsel to represent Appellant in

filing a counseled PCRA petition, and counsel, in fact, filed an amended

petition on Appellant’s behalf on August 4, 2010.           The amended PCRA

petition was timely, and the PCRA court held a hearing on the petition on

December 17, 2010.      Following the PCRA court’s denial of PCRA relief on

January 11, 2011, Appellant perfected a counseled appeal to this Court.

Subsequent to this Court’s affirmance of the denial of PCRA relief, Appellant

filed a counseled petition for allowance of appeal with the Pennsylvania

Supreme Court, which was denied on July 2, 2013; he ultimately filed a

petition for a writ of certiorari that the United States Supreme Court denied

on December 9, 2013.

      Appellant fails to make any cogent argument as to how his premature

pro se PCRA petition from 2010, or the PCRA court’s misstatement regarding

the date upon which his judgment of sentence became final, would result in

his March 21, 2014 PCRA petition being timely. In the instant case,

Appellant’s judgment of sentence became final on June 13, 2010, thirty days

after the trial court denied his timely post-sentence motion on May 14,




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2010, and the date that the thirty-day period to file a direct appeal to this

Court expired. Commonwealth v. Geer, 936 A.2d 1075, 1077 (Pa. Super.

2007) (citing 42 Pa.C.S. § 9545(b)(3) and Pa.R.A.P. 903(a)). Therefore, in

order to comply with the filing requirements of the PCRA, Appellant’s petition

had to be filed by June 13, 2011. Because Appellant’s petition was not filed

until March 21, 2014, it is patently untimely.

      Additionally, we conclude that Appellant has failed to establish that

any of the aforementioned exceptions to the PCRA’s timing requirements

apply.   His voluminous filings and assertions notwithstanding, there is no

basis upon which this Court can conclude that Appellant’s March 21, 2014

PCRA was timely.      Appellant’s PCRA petition presented claims of fraud,

ineffective assistance of counsel, and an unlawfully induced guilty plea;

however, Appellant never addressed the untimely nature of his petition.

PCRA Petition, Certified Record at 121.

      Because Appellant’s instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that the PCRA court lacks jurisdiction to

hear an untimely petition). Likewise, we lack jurisdiction to reach the merits

of the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.




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Super. 2002) (holding that the Superior Court lacks jurisdiction to reach the

merits of an appeal from an untimely PCRA petition).3

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/4/2015




3
  Even if this Court were to deem Appellant’s March 21, 2014 PCRA petition
as having properly asserted a claim of after discovered evidence under 42
Pa.C.S. § 9545(b)(1)(ii), no relief would be due. Appellant provided no basis
in either his PCRA petition or his appellate brief upon which we could
conclude that the issue concerning his premature pro se 2010 PCRA petition
could not have been discovered with the exercise of due diligence and
brought to the court’s attention within sixty days of its discovery pursuant to
42 Pa.C.S. § 9545(b)(2).

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