J-S40012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JASON LOZADA

                            Appellant               No. 3184 EDA 2015


                Appeal from the PCRA Order September 11, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1107211-2004


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JULY 20, 2016

       Jason Lozada appeals1 pro se from the September 11, 2015 order

dismissing his PCRA petition as untimely filed. We affirm.

       In 2004, Appellant was charged with rape of a child, aggravated

indecent assault, statutory sexual assault, corruption of a minor, indecent

assault, indecent exposure, simple assault, and reckless endangerment. On

September 28, 2004, Appellant placed his penis and fingers inside the

vagina of an eleven-year-old child. On January 23, 2007, after a jury was

empaneled, Appellant elected to enter a negotiated guilty plea to rape by
____________________________________________


1
  We note that Appellant’s notice of appeal was mailed from prison on
October 6, 2015, and is considered timely under the prisoner mailbox rule.
Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997); Smith v.
Pennsylvania Board of Probation and Parole, 683 A.2d 278 (Pa. 1996).
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forcible compulsion and corrupting a minor in exchange for a total term of

imprisonment of eight and one-half to twenty years.          The negotiated

sentence was imposed that same day, and Appellant did not file a notice of

appeal.

     On October 24, 2014, Appellant filed a pro se PCRA petition. Counsel

was appointed, and, on July 2, 2015, petitioned to withdraw and 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). Counsel, in his extensive no-merit letter, concluded that the October

24, 2014 PCRA petition was untimely.      The PCRA court sent notice of its

intent to dismiss the petition without a hearing, and, on September 11,

2015, dismissed it as untimely and permitted counsel to withdraw. This pro

se appeal followed. Appellant presents these issues for our review:

     I. Whether the PCRA court erred as a matter of law and/or
     abused its discretion in allowing PCRA counsel to withdraw?

     II. Whether the PCRA court erred as a matter of law and/or
     abused its discretion in dismissing Appellant's PCRA as untimely
     filed and/or failing to fall under the exception provisions of 42
     PA.C.S. §9545(b)(1)(i)- (iii)?

     III. Whether the PCRA Court erred as a matter of law and/or
     abused its discretion in dismissing without a hearing or
     otherwise granting Appellant relief on his claim that he was
     denied the effective assistance of counsel where his trial counsel
     erroneously advised him that, notwithstanding his plea of guilty,
     he would still be able to seek direct appellate review of the trial
     court's denial of his counseled motion to dismiss pursuant to
     Pa.R.Crim.P. 600?



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Appellant’s brief at 3.

      We first outline our standard of review:

             Under the applicable standard of review, we must
      determine whether the ruling of the PCRA court is supported by
      the record and is free of legal error. Commonwealth v.
      Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA
      court's credibility determinations, when supported by the record,
      are binding on this Court. Commonwealth v. Johnson, 600 Pa.
      329, 966 A.2d 523, 532, 539 (2009). However, this Court
      applies a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d
      790, 810 (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by

the record, the PCRA court's credibility determinations and factual findings

are binding on this Court; however, we apply a de novo standard of review

to the PCRA court's legal conclusions.”).

      Before we can address the merits of any of Appellant’s positions, we

must determine whether Appellant’s October 24, 2014 PCRA petition was

timely filed as that issue implicates our jurisdiction.   Commonwealth v.

Miller, 102 A.3d 988 (Pa.Super. 2014).        If a PCRA petition is untimely,

“neither this Court nor the trial court has jurisdiction over the petition.” Id.

at 992 (citation omitted); see Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006) (“[I]f a PCRA petition is untimely, 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.”).



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      Any PCRA petition has to be filed within one year of the date the

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must

determine when Appellant’s judgment of sentence became final.              “A

judgment 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). In this case, since Appellant did not file a

direct appeal from his January 23, 2007 judgment of sentence, that

sentence became final thirty days later, or on February 22, 2007. Appellant

had until February 22, 2008, to file a timely PCRA petition, and his October

24, 2014 petition is patently untimely.   There are three exceptions to the

one-year time bar of § 9545:

       (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.




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42 Pa.C.S. § 9545(b)(1)(i-iii). “Any petition invoking an exception provided

in paragraph (1) shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Appellant’s first position is that the no-merit letter filed by PCRA

counsel was deficient in that it did not address his claims of ineffective

assistance of plea counsel. Our review of the no-merit letter indicates that

PCRA counsel outlined why the PCRA petition in question was untimely.

Since the petition was untimely, none of Appellant’s positions could be

addressed on the merits.    Hence, we reject Appellant’s claim that the no-

merit letter was faulty.

      Appellant next avers that he filed a PCRA petition on April 30, 2007.

He asserts that the clerk of courts should have docketed and processed that

petition, and he invokes the governmental interference exception to the one-

year time bar. We have reviewed the contents of the certified record. The

record contains a petition for PCRA relief that was marked as received by the

clerk of courts on October 24, 2014. That petition is Appellant’s first filed

petition and was entered on the docket the same date that it was received

by the clerk of courts.

      Attached as an exhibit to this filed October 24, 2014 PCRA petition is a

copy of a document captioned as a petition for post-conviction relief. That

copy was marked as received by the PCRA unit of the Philadelphia District

Attorney’s Office on April 30, 2007. The record does not contain a copy of a

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post-conviction petition marked as received by the clerk of courts on April

30, 2007.   Concomitantly, there is no docket entry indicating that a PCRA

petition was filed on April 30, 2007.       The clerk of courts committed no

administrative error herein because there is no proof that the office received

a PCRA petition in 2007 to docket and process.                Accordingly, the

governmental interference exception is inapplicable.

      Simply put, Appellant did not file a petition seeking PCRA relief in

2007; he merely mailed one to the district attorney’s office.         Appellant

provides no support for the proposition that the district attorney’s office had

a duty to ascertain if Appellant also properly filed the petition with the clerk

of courts and, if not, to file it on his behalf. Since Appellant did not file a

timely PCRA petition, we have no jurisdiction to entertain the merits of his

third position, which pertains to plea counsel’s ineffective assistance.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2016




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