J-A10015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN BOYNTON, JR.

                            Appellant                No. 507 MDA 2014


                 Appeal from the Order Entered March 6, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001482-2005


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED MAY 27, 2015

        Appellant, Benjamin Boynton, Jr., appeals from the order entered in

the Lackawanna County Court of Common Pleas, which dismissed his first

petition brought pursuant to the Post Conviction Relief Act (“PCRA”).1     We

affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant sexually molested the victim from the time she was six years old

until she was ten years old. A jury convicted Appellant on March 7, 2006, of

rape of a child, aggravated indecent assault—complainant less than thirteen

years of age, indecent assault—complainant less than thirteen years of age,

and corruption of minors. The court sentenced Appellant on June 28, 2006,
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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to an aggregate term of thirteen and a half (13½) to forty (40) years’

imprisonment.      Appellant timely filed a notice of appeal on July 26, 2006.

This Court dismissed Appellant’s appeal on October 19, 2006, for failure to

file a docketing statement.

       On July 20, 2012, Appellant filed a pro se PCRA petition, and the PCRA

court appointed counsel. The Commonwealth filed an answer to Appellant’s

PCRA petition on August 29, 2012. PCRA counsel filed a petition to withdraw

and a Turner/Finley2 “no-merit” letter on July 30, 2013. Appellant filed pro

se objections to PCRA counsel’s “no-merit” letter on August 26, 2013. On

January 30, 2014, the PCRA court granted PCRA counsel’s petition to

withdraw and issued notice of its intent to dismiss Appellant’s PCRA petition

without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court dismissed

Appellant’s PCRA petition on March 6, 2014. Appellant timely filed a pro se

notice of appeal.3 On March 28, 2014, the PCRA court ordered Appellant to

____________________________________________


2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
3
  “A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.” Pa.R.A.P. 905(a)(5). Instantly, the PCRA
court issued Rule 907 notice on January 30, 2014. Appellant filed his notice
of appeal pro se on February 25, 2014 (prisoner mailbox rule). Appellant’s
notice of appeal was time-stamped on March 4, 2014, and entered on the
docket on March 14, 2014. Meanwhile, the PCRA court dismissed Appellant’s
petition on March 6, 2014, after Appellant filed his pro se notice of appeal.
Thus, Appellant’s premature notice of appeal relates forward to March 6,
2014. See id.



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file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and Appellant timely complied pro se on April 9, 2014.

      Appellant raises the following issues for our review:

           WHETHER THE [PCRA] COURT ERRED, SHOWING BIAS,
           PREJUDICE AND ILL-WILL TOWARDS [APPELLANT], WHEN
           [THE PCRA COURT] DEN[IED] HIS PETITION TO COMPEL
           FILED ON JANUARY 16, 2014.

           WHETHER APPELLANT HAS AN EXCEPTION TO THE
           TIMELINESS REQUIREMENT SET FORTH IN [THE] POST-
           CONVICTION RELIEF ACT PURSUANT TO § 9545.

(Appellant’s Brief at 2, 5).

      Preliminarily we observe, “to preserve their claims for appellate

review, appellants must comply whenever the [PCRA] court orders them to

file a Statement of [Errors] Complained of on Appeal pursuant to [Rule]

1925. Any issues not raised in a [Rule] 1925(b) statement will be deemed

waived.”    Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775,

780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d

306, 309 (1998)). Here, Appellant failed to raise his first issue in his Rule

1925(b) statement. Therefore, it is waived. See id.

      As an additional prefatory matter, we must determine whether

Appellant timely filed his PCRA petition.   Commonwealth v. Harris, 972

A.2d 1196 (Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227

(2009). Pennsylvania law makes clear no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003).      The most recent amendments to the PCRA, effective

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January 16, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final.     42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.

Bretz, 830 A.2d 1273 (Pa.Super. 2003). A judgment is deemed 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.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a

petition must allege and the petitioner must prove:

         (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.A. § 9545(b)(1)(i)-(iii).    Additionally, a petitioner asserting a

timeliness exception must file a petition within sixty (60) days of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such,


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when a PCRA petition is not filed within one year of the expiration of direct

review, or not eligible for one of the three limited exceptions, or entitled to

one of the exceptions, but not filed within 60 days of the date that the claim

could have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      Instantly, the PCRA court determined:

         [Appellant’s] judgment became final on November 18,
         2006[,] when time expired for him to seek discretionary
         review in the Pennsylvania Supreme Court. He thus had
         until one year later, on November 18, 2007, to file any and
         all PCRA petitions. The current petition was filed more
         than 4 years too late. The Pennsylvania Supreme Court
         has recognized an exception to the timeliness requirement
         where counsel abandons the defendant on appeal and his
         appeal is dismissed. Commonwealth v. Bennett, 930
         A.2d 1264 (Pa. 2007). However, the defendant must
         exercise due diligence in ascertaining this, and file his
         PCRA petition within 60 days of discovering that his appeal
         has been dismissed. Id. Here, [Appellant] was notified by
         the Superior Court on April 10, 2007[,] that he did not
         have an appeal pending. Had he filed his PCRA petition
         after he received this letter, he would have been well
         within the one year time deadline for the filing of a PCRA
         petition (he had until November 18, 2007). Instead, he
         waited until July 20, 2012[,] and is many years out of time
         to seek PCRA relief.

         [PCRA counsel] states in his Turner/Finley letter that
         [Appellant] is beyond the time to seek PCRA relief, and
         that he has not claimed any exceptions to the one year
         filing requirement. This court is thus without jurisdiction
         to rule on the petition.

(PCRA Court’s Rule 907 Opinion, filed January 30, 2014, at 2-3) (citations to

record omitted).    We accept the PCRA court’s conclusions.         Therefore,

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Appellant’s petition remains time-barred. Accordingly, we affirm the order

dismissing Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




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