J-S74001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSEPH M. HOUGHTON,

                            Appellant                  No. 2862 EDA 2013


           Appeal from the PCRA Order Entered September 17, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001073-2010


BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 08, 2014

        Appellant, Joseph M. Houghton, appeals pro se from the trial court’s

September 17, 2013 order denying his petition for relief 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:

               On August 9, 2010, Appellant entered a negotiated guilty
        plea to three counts of Possession with Intent to Deliver and was
        immediately sentenced … to: an aggregate state term of
        imprisonment totaling 15-36 months, plus four years of
        consecutive state probation. No Post-sentence Motions were
        filed. In addition, [] Appellant never filed a timely direct appeal
        to the Pennsylvania Superior Court.

              One year later, on August 9, 2011, Appellant filed a pro se
        “Application for Permission to file Nunc Pro Tunc Appeal” with the
        Superior Court. On August 29, 2011, the Superior Court denied

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      his pro se appeal without prejudice to [his ability] to apply for
      relief in the trial court via the [PCRA]….

            Eventually, on May 9, 2013, [] Appellant filed a Petition
      under the … []PCRA[], and subsequently Henry DiBenedetto
      Forrest, Esquire[,] was appointed to represent [] Appellant. On
      June 13, 2013, [counsel] … determined that there were no
      issues of merit and submitted 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)].

             On June 14, 2013, the [PCRA] [c]ourt[,] after considering
      counsel’s no merit letter and after an independent review of the
      record[,] filed a Notice of Intent to Dismiss [Appellant’s] PCRA
      petition without a hearing. On September 18, 2013, the Court
      denied Appellant’s PCRA [p]etition. On October 10, 2013[,]
      Appellant filed a timely Notice of Appeal, and on October 16,
      2013[,] the [c]ourt filed a[n] … order directing Appellant to file a
      Concise Statement of [Errors] Complained of on Appeal pursuant
      to Pa.R.A.P. 1925[(b)]. The [o]rder provided:

         Appellant shall forthwith – and no later than twenty-one
         (21) days following the date of this Order [-] file of record
         in the lower Court and serve on the trial judge a Concise
         Statement of [Errors] Complained of on Appeal. Pursuant
         to Pa.R.A.P. 1925(b), failure to comply with such direction
         may be considered by the Appellate Court as a waiver of
         all objections to the Order, ruling or other matters
         complained of.

      As of the date of this opinion, Appellant has filed no Statement
      of [Errors] Complained of on Appeal.

PCRA Court Opinion (PCO), 3/5/14, at 1-2 (footnotes omitted).

      After this Court granted Appellant several extensions of time within

which to file his appellate brief, he filed an untimely pro se brief with this

Court on August 25, 2014.     Because the Commonwealth did not move for

dismissal of this appeal based on Appellant’s untimely-filed brief, we will

overlook this error. See Pa.R.A.P. 2188 (“If an appellant fails to file his …

brief … within the time prescribed by these rules, or within the time as

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extended, an appellee may move for dismissal of the matter.”)

(emphasis added); see also Commonwealth v. Miller, 787 A.2d 1036,

1038 n.5 (Pa. Super. 2001) (noting it is within our discretion to address the

merits of an appeal where the appellant’s brief was untimely filed and the

Commonwealth did not move for dismissal pursuant to Rule 2188).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified

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

      We must begin by addressing the timeliness of Appellant’s petition,

because the PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth




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in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition
          alleges and the petitioner proves that:

             (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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

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

        Here, Appellant’s judgment of sentence became final on September 9,

2010, thirty days after his judgment of sentence was imposed.             See 42

Pa.C.S. § 9545(b)(3) (judgment of sentence becomes final at the conclusion

of direct review or the expiration of the time for seeking the review);

Pa.R.A.P. 903(a) (“Except as otherwise prescribed by this rule, the notice of

appeal required by Rule 902 (manner of taking appeal) shall be filed [with



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the Superior Court] within 30 days after the entry of the order from which

the appeal is taken.”). Thus, Appellant had until September 9, 2011, to file

a timely petition, making his May 9, 2013 petition patently untimely.

Consequently, for this Court to have jurisdiction to review the merits of this

appeal, Appellant must prove that he meets one of the exceptions to the

timeliness requirements set forth in 42 Pa.C.S. § 9545(b).

      From what we can ascertain from Appellant’s handwritten brief (which

does not fully comply with the briefing requirements set forth in the

Pennsylvania Rules of Appellate Procedure), Appellant avers that his plea

counsel acted ineffectively by “steadfastly refus[ing] to get [Appellant]

proper discovery and to advance [his] defense of entrapment.” Initially, this

claim is waived because Appellant did not file a Rule 1925(b) statement.

See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).    Nevertheless, even had Appellant preserved this issue in a

timely-filed Rule 1925(b) statement, it would not satisfy one of the above-

stated exceptions. Both our Supreme Court and this Court have stated that

claims of ineffectiveness generally cannot save an otherwise untimely PCRA

petition.    See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785

(holding that ineffectiveness of counsel claim generally does not constitute

an   exception   to   the   PCRA   time   requirements);   Commonwealth v.

Williams, 35 A.3d 44, 54 (Pa. Super. 2011) (citing Gamboa-Taylor in

concluding that the appellant could not rely on an ineffective assistance of

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counsel claim to satisfy one of the exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)-(iii)).   Accordingly, we agree with the PCRA court that

Appellant’s petition was untimely and that he has failed to plead and prove

the applicability of a timeliness exception.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2014




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