J-S05022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                        Appellee           :
                                           :
            v.                             :
                                           :
TROY DAVID CLARK,                          :
                                           :
                        Appellant          :    No. 900 WDA 2014


            Appeal from the PCRA Order Entered April 25, 2014,
            In the Court of Common Pleas of Clearfield County,
            Criminal Division, at Nos. CP-17-CR-0000137-2009
                      and CP-17-CR-0000726-2009.


BEFORE: DONOHUE, SHOGAN, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 03, 2015

      Appellant, Troy David Clark, appeals pro se from the April 25, 2014

order that denied his second petition for relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we

affirm.

      The record reveals that on September 22, 2009, Appellant entered

open guilty pleas at trial court docket numbers CP-17-CR-0000137-2009 and

CP-17-CR-0000726-2009.        At docket number CP-17-CR-0000137-2009,

Appellant pled guilty to one count each of aggravated assault, simple

assault, and disorderly conduct.     At docket number CP-17-CR-0000726-

2009, Appellant pled guilty to one count each of intimidation of a witness,

terroristic threats, and simple assault.   The trial court sentenced Appellant
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on September 28, 2009, to an aggregate term of ten months to fifteen years

of incarceration. No direct appeal was filed.

       On June 29, 2010, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel, and counsel filed an amended PCRA petition on

March 30, 2011. The PCRA court denied Appellant relief in an order filed on

February 27, 2012. Appellant filed a timely appeal on March 16, 2012, and

this   Court   affirmed   the   PCRA     court’s   order   on   May   30,   2013.

Commonwealth v. Clark, 494 WDA 2012, 81 A.3d 1009 (Pa. Super. filed

May 30, 2013) (unpublished memorandum).

       Thereafter, Appellant filed, pro se, a second PCRA petition on June 25,

2013. The PCRA court appointed counsel on December 13, 2013. Counsel

subsequently filed a Turner/Finley1 no-merit letter and a petition to

withdraw on February 28, 2014.         In an order filed on April 25, 2014, the

PCRA court granted counsel’s petition to withdraw and dismissed Appellant’s

PCRA petition. This timely appeal followed.

       On appeal, Appellant raises one issue:

       Whether the PCRA court erred as a matter of law and/or abused
       its discretion, when it dismissed Appellant’s PCRA petition
       without issuing a notice to dismiss, in accordance with
       Pa.R.Crim.P., Rule 907.

Appellant’s Brief at 1 (full capitalization omitted).


1
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (setting forth
the procedure for counsel to withdraw in PCRA matters).

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     Our standard of review of an order denying PCRA relief is whether the

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

court’s decision is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877 A.2d

479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be disturbed

unless there is no support for them in the certified record.                   Id. (citing

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

     Before we may reach the merits of Appellant’s claim of error, we must

address whether Appellant satisfied the timeliness requirements of the

PCRA.    It is well settled that the timeliness of a PCRA petition is a

jurisdictional threshold that may not be disregarded in order to reach the

merits   of   the   claims   raised   in   a     PCRA   petition   that   is    untimely.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). In order to be

considered timely, a first, or any subsequent PCRA petition, must be filed

within one year of the date the petitioner’s judgment of sentence becomes

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




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        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented.

42 Pa.C.S. § 9545(b)(2).     In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

        Our review of the record reflects that Appellant’s judgment of sentence

became final on October 28, 2009, thirty days after the time expired for

Appellant to file a direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3);

2
    The exceptions to the timeliness requirement are:

        (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), (ii), and (iii).


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Pa.R.A.P. 1113. Accordingly, Appellant’s instant PCRA petition, his second,

which was filed on June 25, 2013, is patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

      In his sole issue on appeal, Appellant correctly asserts that the PCRA

court failed to comply with Pa.R.Crim.P. 907 by not providing him with

notice that it intended to dismiss his PCRA petition without holding an

evidentiary hearing. However, “our Supreme Court has held that where the

PCRA petition is untimely, the failure to provide such notice is not reversible

error.” Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007)

(citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000)).

Thus, the failure of the PCRA court to provide the Rule 907 notice does not

entitle Appellant to relief.     Davis, 916 A.2d at 1208.           See also

Commonwealth v. Kutnyak, 781 A.2d 1259, 1263 (Pa. Super. 2000)

(recognizing that under Pursell, the absence of Pa.R.Crim.P. 1507, now

Rule 907, notice, standing alone, does not provide a basis for reversal of the

dismissal of an untimely PCRA petition).




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        Because Appellant raised no additional issues and provided no

argument or basis upon which an exception to the PCRA time bar applies, we

conclude that Appellant’s PCRA petition was untimely. Accordingly, because

the instant PCRA petition was untimely and no exceptions apply, the PCRA

court    lacked   jurisdiction   to   address   the   claim   presented.   See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that the PCRA court lacks jurisdiction to hear an untimely petition).

Likewise, we lack jurisdiction to reach the merits of the appeal.          See

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding that the Superior Court lacks jurisdiction to reach the merits of an

appeal from an untimely PCRA petition).         Therefore, we affirm the order

denying Appellant’s PCRA petition.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2015




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