J-S30022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

MARK ALAN WEAVER

                            Appellant                No. 810 MDA 2016


                   Appeal from the PCRA Order May 4, 2016
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0000075-2009


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                             FILED JUNE 27, 2017

       Appellant, Mark Alan Weaver, appeals from the order entered May 4,

2016, denying as untimely his serial petition for collateral relief filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In November 2009, a jury convicted Appellant of three counts of

aggravated indecent assault and indecent assault, two counts each of

involuntary deviate sexual intercourse and criminal attempt to commit rape,

and one count each of criminal attempt to commit sexual assault, sexual

assault, indecent exposure, and simple assault.1

       In February 2010, the court imposed an aggregate sentence of nine to

forty years of incarceration. Appellant filed a post-sentence motion, which
____________________________________________


1
  See 18 Pa.C.S. §§ 3125(a), 3126(a), 3123(a), 901, 3121(a), 3124.1,
3127(a), 2701(a)(1), respectively.
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was denied. His judgment of sentence was affirmed on direct appeal. See

Commonwealth v. Weaver, 29 A.3d 829 (Pa. Super. 2011) (unpublished

memorandum). Appellant did not appeal this decision.

      In April 2012, Appellant timely filed a first PCRA petition, counsel was

appointed, and an evidentiary hearing held.       Ultimately, the PCRA court

denied the petition.    This Court affirmed the dismissal on appeal.        See

Commonwealth v. Weaver, 82 A.3d 464 (Pa. Super. 2013), appeal

denied, 81 A.3d 77 (Pa. 2013).

      In December 2013, Appellant untimely filed a second PCRA petition.

His petition was denied without a hearing, and he did not appeal.

      In April 2016, Appellant untimely filed a third PCRA petition.        After

sending notice that Appellant’s petition would be dismissed without a hearing

pursuant to Pa.R.Crim.P. 907, the court dismissed Appellant’s petition as

untimely filed.

      Appellant timely appealed and filed a court-ordered statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).       The PCRA

court issued a responsive opinion.

      On appeal, Appellant raises two issues for our review, which we have

restated for clarity.

      1. Did the trial court err in failing to conduct an evidentiary
      hearing regarding the ineffectiveness of all prior counsel?

      2. Did the trial court err in finding that Appellant’s petition was
      time barred and whether Appellant is entitled to nunc pro tunc
      review of his issues?


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See Appellant’s Brief at 4.

      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. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      In this case, the PCRA court dismissed Appellant’s petition without a

hearing. See PCRA Court Order, 5/4/16, at 1. There is no absolute right to

an evidentiary hearing. See Commonwealth v. Springer, 961 A.2d 1262,

1264 (Pa. Super. 2008). On appeal, we examine the issues raised in light of

the record “to determine whether the PCRA court erred in concluding that

there were no genuine issues of material fact and denying relief without an

evidentiary hearing.” Springer, 961 A.2d at 1264.

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

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

disregarded   in   order   to   address   the   merits   of   his   claims.   See

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

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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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       (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 these

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

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.2        Accordingly, in order to reach the

merits of his issues, he must plead and prove one of the exceptions to the

time bar. See Bennett, 930 A.2d at 1267. Appellant does not plead any of

the three time bar exceptions.          Instead, he raises various evidentiary and

sentencing issues, and he avers that he has made a prima facie showing of a

miscarriage of justice, per Commonwealth v. Lawson, 549 A.2d 107, 112

(Pa. 1988) (holding that a second or subsequent petition for post-conviction

relief will not be entertained unless a strong prima facie showing is offered

to demonstrate a miscarriage of justice may have occurred).
____________________________________________


2
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 11, 2011, at the expiration of his thirty days to petition
for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S.
§ 9545(b)(3) (a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).
Accordingly, he had until May 2012 to timely file a PCRA petition.



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      Appellant’s argument does not merit relief.        Lawson predates the

1995 amendment to the PCRA that added the jurisdictional time bar, and

Appellant does not acknowledge that, since that time, our courts have

consistently viewed the PCRA’s time limits as mandatory and jurisdictional.

See Bennett, 930 A.2d at 1267; see also Commonwealth v. Lawson, 90

A.3d 1, 4 (Pa. Super. 2014) (“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.”).

      Appellant   also   misinterprets   our   Supreme    Court’s     decision   in

Commonwealth v. Grant, 813 A.3d 726 (Pa. 2002), arguing, incorrectly,

that because all prior counsel were ineffective and he is innocent, the

jurisdictional time bar does not apply to his case. Id. at 738 (noting that,

as a general rule, a petitioner should wait to raise claims of ineffectiveness

until collateral review, and an ineffectiveness claim will be waived only after

a petitioner has had the opportunity to raise the issue on collateral review

and did not do so).

      Accordingly, because Appellant’s petition is untimely and he does not

plead an exception to the time bar, the PCRA court did not err in dismissing

his petition. See 42 Pa.C.S. § 9545(b); Bennett, 930 A.2d at 1267; Ragan,

923 A.2d at 1170.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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