J-S28028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SCOTT WADE SMITH

                            Appellant                 No. 1494 WDA 2016


                  Appeal from the PCRA Order September 1, 2016
              In the Court of Common Pleas of Westmoreland County
                Criminal Division at No(s): CP-65-CR-0002234-2008


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                           FILED AUGUST 18, 2017

       Scott Wade Smith appeals, pro se, from the September 1, 2016 order

of the Westmoreland County Court of Common Pleas dismissing as untimely

his petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.

§§ 9541-46. We affirm.

       On December 17, 2009, Smith entered a guilty plea to one count of

involuntary deviate sexual intercourse with a child, 18 Pa.C.S. § 3123(b).

On March 5, 2010, the trial court sentenced Smith to 10 to 30 years in

prison. Smith did not file a direct appeal.

       On October 22, 2010, Smith filed a timely PCRA petition, which the

PCRA court denied on February 23, 2011. On August 15, 2016, Smith filed

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
J-S28028-17



the instant PCRA petition, his second.     On September 1, 2016, the PCRA

court dismissed the petition as untimely, noting also that the issues in

Smith’s petition were either waived or previously litigated.

      Smith filed a pro se notice of appeal on September 28, 2016.          On

October 3, 2016, the PCRA court ordered Smith to file a Pennsylvania Rule of

Appellate Procedure 1925(b) statement of errors complained of on appeal

within 21 days. Smith did not file a timely Rule 1925(b) statement.

      On November 3, 2016, the PCRA court issued an order stating that:

(1) Smith waived all issues on appeal for failing to file a timely Rule 1925(b)

statement; and (2) the PCRA court was unable to author a Rule 1925(a)

opinion due to the absence of a Rule 1925(b) statement.

      On November 16, 2016, Smith filed with the PCRA court a pro se

motion for extension of time to file a Rule 1925(b) statement.          In his

motion, Smith averred that when he received the PCRA court’s Rule 1925(b)

order, he erroneously believed that the “statement” referenced in the order

was the criminal docketing statement, which he timely filed with this Court.

Smith attached to his motion a Rule 1925(b) statement listing the four

issues he wished to raise on appeal and asked the PCRA court to accept the

untimely statement. The PCRA court did not rule on the motion, presumably

because the matter was already on appeal to this Court, thereby depriving

the PCRA court of jurisdiction.




                                     -2-
J-S28028-17



       On appeal, Smith raises four issues relating to the merits of his second

PCRA petition. See Smith’s Br. at 4-5. Because we conclude that Smith’s

PCRA petition is time-barred, however, we may not consider his claims.1

       The timeliness of a PCRA petition is a jurisdictional requisite.        See

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied,

125 A.3d 1197 (Pa. 2015).          A petitioner must file a PCRA petition, including

a second or subsequent petition, within one year of the date his or her

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, Smith

did not file a direct appeal, so his judgment of sentence became final 30

days after its entry, on April 5, 2010. See 42 Pa.C.S. § 9545(b)(3). Smith

had one year from that date, or until April 5, 2011, to file a timely PCRA

petition.   Thus, the instant PCRA petition, filed on August 15, 2016, was

facially untimely.

       To overcome the time bar, Smith was required to plead and prove one

of the following exceptions: (i) unconstitutional interference by government
____________________________________________


       1
         The Commonwealth contends, and the PCRA court found, that
Smith’s claims are waived for his failure to file a timely court-ordered
Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors
complained of on appeal. We disagree. Our Court has stated that “[i]f the
[trial court] docket does not show that notice of the entry of a Rule 1925(b)
order was provided to an appellant, then we will not conclude that [his]
issues have been waived for failure to file a Rule 1925(b) statement.” In re
L.M., 923 A.2d 505, 510 (Pa.Super. 2007). Whether the appellant actually
received notice is irrelevant if “the docket does not reflect that notice was
sent.” Id. Here, the PCRA court docket does not reflect that the clerk of
courts mailed notice of the Rule 1925(b) order to Smith. Therefore, we will
not find waiver on that basis. See id.



                                           -3-
J-S28028-17



officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Smith must have filed his petition

within 60 days of the date the claim could have been presented.         See 42

Pa.C.S. § 9545(b)(2). In his PCRA petition, however, Smith failed to plead

or prove any of the exceptions to the one-year time bar.        Therefore, the

PCRA court properly dismissed his petition as untimely.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2017




                                     -4-
