J-S46021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

WAYNE PRATER

                            Appellant                      No. 658 EDA 2015


                 Appeal from the PCRA Order January 30, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-MD-0000254-2011


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

MEMORANDUM BY OTT, J.:                                      FILED JULY 06, 2016

        Wayne Prater appeals, pro se, from the order entered January 30,

2015, dismissing his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.             On November 7, 2011, the trial

court sentenced Prater to two months, 28 days to five months, 29 days’

imprisonment, following his conviction of criminal contempt for violating a

protection from abuse order.1           On appeal, Prater asserts the PCRA court

erred in dismissing his petition, as untimely and non-reviewable, without

conducting an evidentiary hearing.             For the reasons set forth below, we

affirm.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    23 Pa.C.S. § 6114.
J-S46021-16



       The facts underlying Prater’s conviction are as follows. On August 8,

2011, the trial court ordered Prater to have no contact with the victim,

Yvette Mason. Nevertheless, Prater subsequently sent numerous letters to

the victim and her minor children.2 Thereafter, on November 7, 2011, the

trial court found Prater in contempt of the no-contact order, and sentenced

him to a term of imprisonment of two months, 28 days to five months, 29

days. No direct appeal was filed.

       On April 24, 2013, Prater filed the present PCRA petition, pro se,

asserting the trial court had no jurisdiction to find him in contempt, and that

the contempt finding was entered in error because the children to whom he

addressed the letters were not on the no-contact order, and the victim had

no right to open the children’s mail.          See PCRA Petition, 4/24/2013, at 3.

Counsel entered an appearance on December 19, 2013, however, in lieu of

filing an amended petition, counsel filed a Turner/Finley3 “no merit” letter

on April 23, 2014, concluding Prater was ineligible for relief because his

petition was time-barred, and he was no longer serving a sentence.

____________________________________________


2
  Although it is unclear from the limited record before us, Prater alleges he is
the father of those children. See Prater’s Brief at 10 (noting the PCRA court
failed to “point out that the three children [to whom he addressed a letter]
were also the biological children of [Prater] who possessed a court order
authorizing contact with each of his three children.”).
3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




                                           -2-
J-S46021-16



Thereafter, on July 23, 2014, Prater filed a pro se amended PCRA petition, in

which he asserted claims of the ineffectiveness of counsel, and raised the

governmental interference exception to the time-bar.

       On October 21, 2014, the PCRA court sent Prater notice of its intent to

dismiss his petition without first conducting an evidentiary hearing pursuant

to Pa.R.Crim.P. 907. The court sent an amended notice on November 18,

2014, and Prater filed a pro se response on December 8, 2014. Thereafter,

on January 30, 2015, the PCRA court entered an order denying Prater’s

petition.   The docket reflects the court also permitted PCRA counsel to

withdraw. This timely appeal followed.4

       On appeal, Prater contends the PCRA court erred in dismissing his

petition. With regard to the timeliness issue, Prater contends prison officials

interfered “in his attempts to communicate” with his counsel, which led him

to seek relief in the federal courts. Prater’s Brief at 7. In fact, he asserts

the federal court of appeals entered a ruling in his favor.5        Id. at 8.

Consequently, he claims the governmental interference exception to the

PCRA’s timing requirements applies in his case.           See 42 Pa.C.S. §
____________________________________________


4
  The PCRA court did not direct Prater to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, the PCRA
court filed an opinion on June 30, 2015.
5
  See Prater v. City of Philadelphia, 542 Fed.Appx. 135 (3d Cir. 2013)
(vacating, in part, district court’s grant of summary judgment to City, and
permitting Prater to demonstrate, on remand, that prison’s denial of access
to his criminal attorney warranted money damages).



                                           -3-
J-S46021-16



9545(b)(1)(i).   Prater also argues “[t]he PCRA Court’s assertion that [he]

had already completed serving his sentence in this case at the time relief

would have been granted, and as a reason for denying the petition, is

inconsistent with the legislative intent or spirit of the law.” Prater’s Brief at

6.

      When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by evidence of

record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,

1267 (Pa. Super. 2010). “Great deference is granted to the findings of the

PCRA court, and these findings will not be disturbed unless they have no

support in the certified record.” Commonwealth v. Carter, 21 A.3d 680,

682 (Pa. Super. 2011) (citation omitted).

      Here, the PCRA court determined Prater’s petition was untimely. PCRA

Opinion, 6/20/2015, at 4. We agree. Prater’s judgment of sentence became

final on December 7, 2011, 30 days after he was sentenced for criminal

contempt and did not file a direct appeal.      See 42 Pa.C.S. § 9545(b)(3).

Therefore, Prater had one year from that date within which to file a timely

PCRA petition. See id. at § 9545(b)(1). His present petition, filed on April

24, 2013, was facially untimely.

      Nevertheless, an otherwise untimely petition is not time-barred if a

petitioner pleads and proves the applicability of one of three time-for-filing

exceptions, including a claim that “the failure to raise the claim previously

was the result of interference by government officials with the presentation

                                      -4-
J-S46021-16



of the claim[.]”    42 Pa.C.S. § 9545(b)(1)(i).      However, “[a]ny petition

invoking [this] exception shall be filed within 60 days of the date the claim

could have been presented.” Id. at § 9545(b)(2).

      Prater argues extensively in his brief that prison officials interfered

with his ability to communicate with counsel, such that he was denied the

right of a direct appeal in which to raise his meritorious claim that the

contempt finding was in error.     See Prater’s Brief at 6-11.     He does not

demonstrate, however, that he filed his petition within 60 days of the date

that claim could have been presented pursuant to Subsection 9545 (b)(2).

This error is fatal to his request for relief.       See Commonwealth v.

Beasley, 741 A.2d 1258, 1261-1262 (Pa. 1999) (stating “to qualify for any

of the exceptions found in [42 Pa.C.S. § 9545] (b)(1)(i)-(iii), one must not

only satisfy the substantive requirements of the exception provision, but

must also file a petition invoking that exception within sixty days of the date

the claim could have been filed.”).

      Nevertheless, even if we were to find Prater established a timeliness

exception, Prater is ineligible for relief under the PCRA. The Act mandates

that to be eligible for relief, a petitioner must plead and prove, inter alia, he

is “currently serving a sentence of imprisonment, probation or parole for the

crime” or “serving a sentence which must expire before [he] may commence

serving the disputed sentence.” 42 Pa.C.S. § 9543(a)(1)(i), (iii). The PCRA

court stated Prater’s “maximum date for his sentence was May 6, 2012,

which means [his] sentence was complete almost one year before [he] filed

                                      -5-
J-S46021-16



his PCRA petition.” PCRA Court Opinion, 6/30/2015, at 4. Prater does not

dispute this fact, but rather baldly asserts that the denial of relief on this

basis “is inconsistent with the legislative intent or spirt of the law.” Prater’s

Brief at 6.

      We disagree. As the Pennsylvania Supreme Court opined:

      [T]he General Assembly, through the PCRA, excluded from
      collateral review those individuals who were no longer subject to
      a state sentence, thereby limiting the statutory right of collateral
      review to those whose liberty was constrained.

             The legislature was aware that the result of the custody or
      control requirement of Section 9543(a)(1)(i) would be that
      defendants with short sentences would not be eligible for
      collateral relief. Indeed, that was the apparent intent: to
      restrict collateral review to those who seek relief from a state
      sentence. The legislature’s exclusion from collateral relief of
      individuals whose liberty is no longer restrained is consistent
      with the eligibility requirements of habeas corpus review under
      the general state habeas corpus statute, 42 Pa.C.S. § 6501 et
      seq.

Commonwealth v. Turner, 80 A.3d 754, 766 (Pa. 2013) (internal citations

and footnote omitted), cert. denied, 134 S.Ct. 1771 (U.S. 2014).

      Accordingly, because we agree Prater is ineligible for relief under the

PCRA, we affirm the order of the court dismissing his first petition.

      Order affirmed.




                                      -6-
J-S46021-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




                          -7-
