J. S30024/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                  v.                    :
                                        :
NELSON LUGO,                            :         No. 2986 EDA 2014
                                        :
                       Appellant        :


             Appeal from the PCRA Order, September 26, 2014,
              in the Court of Common Pleas of Chester County
              Criminal Division at No. CP-15-CR-0002638-2004


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 09, 2015

      Appellant, Nelson Lugo, appeals from the September 26, 2014 order

dismissing his fifth petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Finding that the PCRA petition under

review was untimely filed and that no valid exception to the time

requirements of the PCRA exists, we affirm.

      The facts, as summarized by the PCRA court, are as follows:

                  On September 12, 2005, [a]ppellant entered
            open guilty pleas in this case, and case No. 4407-
            2004, to one count of possession with the intent to
            deliver cocaine, two counts of delivery of cocaine,
            and one count of corrupt organizations. He was
            sentenced on December 15, 2005, to serve a term of
            imprisonment of twenty-six (26) to sixty-eight (68)
            years.    In his appeal to the Superior Court,
            [a]ppellant challenged his sentence as unduly harsh.
            The Superior Court disagreed, and affirmed
            [a]ppellant’s judgment of sentence on October 10,
J. S30024/15


            2006. The Pennsylvania Supreme Court denied his
            petition for allowance of appeal on March 27, 2007.

                   Appellant filed his first PCRA petition on
            October 29, 2007, and subsequent petitions on
            April 21, 2009, May 3, 2010,[Footnote 1] and
            January 24, 2011. All were denied or dismissed, and
            all appeals unsuccessful.          On April 9, 2014,
            [a]ppellant filed the instant PCRA petition.       Our
            review of the petition revealed it to be untimely, and
            on September 9, 2014, we gave [a]ppellant notice of
            our intent to dismiss his petition. Appellant promptly
            responded to this notice, but raised no issue that
            would have required that the proceedings continue.
            Accordingly, on September 26, 2014, we dismissed
            [a]ppellant’s most recent petition for post-conviction
            collateral relief. This appeal followed.

                   [Footnote 1] Appellant acknowledged
                   that this petition was untimely, but
                   claimed entitlement to the newly
                   discovered facts exception to the PCRA’s
                   timeliness requirements. 42 Pa.C.S.A.
                   § 9545(b)(1)(ii).

PCRA court opinion, 11/24/14 at 1-2.

      The following issue has been presented for our review:

            I.     WHETHER THE PCRA COURT ERRED WHEN IT
                   DISMISSED THE POST CONVICTION PETITION
                   AS “TIME BARRED” WHERE THE SENTENCE
                   WAS NOT IMPOSED IN OPEN COURT AND NO
                   FINAL JUDGMENT WAS ENTERED?

Appellant’s brief at 1.

      Our standard of review for an order denying post-conviction relief is

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

the PCRA court’s determination is free of legal error.   Commonwealth v.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings


                                    -2-
J. S30024/15


will not be disturbed unless there is no support for the findings in the

certified record. Id.

      A PCRA petition must be filed within one year of the date that the

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

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

      Appellant’s judgment of sentence became final on June 25, 2007,

ninety days after the Pennsylvania Supreme Court denied his petition for

allowance of appeal. Appellant had one year from that date to file a PCRA

petition.   The instant petition was filed on April 9, 2014, is manifestly

untimely, and cannot be reviewed unless appellant invokes a valid exception

to the time bar of the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). A review

of the petition reveals that appellant has not invoked any time of filing

exception; thus, both the PCRA court and this court are without jurisdiction

to review the issues raised in appellant’s petition. (See docket #8.)

      Accordingly, having found that appellant’s PCRA petition was untimely

filed and that no time of filing exception was invoked, we will affirm the

order below.

      Order affirmed.




                                    -3-
J. S30024/15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/9/2015




                          -4-
