J-S69033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GURINDER SINGH,

                        Appellant                    No. 437 EDA 2015


              Appeal from the PCRA Order of January 9, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002760-2012


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

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 29, 2015

     Appellant, Gurinder Singh, appeals pro se from the order entered on

January 9, 2015, dismissing his petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       Although both the PCRA

court and the Commonwealth contend that Appellant is entitled to relief, we

are constrained to affirm the order of the PCRA court.

     The PCRA court has ably summarized the facts and procedural posture

underlying this appeal. As the PCRA court explained:

        On February 24, 2012, [Appellant] was arrested and
        charged with, inter alia, first-degree murder and third-
        degree murder in connection with the death of his wife. . . .

        On April 30, 2012, a preliminary hearing was held and Mr.
        Scott Kramer, Esquire represented [Appellant]. On May 10,
        2012, Appellant was arraigned. . . . On December 4, 2012,
        Appellant entered a non-negotiated guilty plea to third-
        degree murder. On January 23, 2013, the [trial] court held
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         a sentencing hearing. At the hearing, the Commonwealth
         asked the court to sentence Appellant to a period of state
         incarceration of 20 to 40 years.         Appellant’s counsel
         requested the court [to] sentence Appellant toward the
         bottom of the standard [sentencing] range. On January 23,
         2013, the [trial] court sentenced Appellant to [serve 15 to
         30 years in prison, followed by five years of probation].

         On [Tuesday,] February 5, 2013, [(or, 13 days after
         Appellant was sentenced)] Appellant’s plea counsel filed a[n
         untimely] motion for reconsideration of sentence[. See
         Pa.R.Crim.P. 720(A)(1) (“a written post-sentence motion
         shall be filed no later than 10 days after imposition of
         sentence”). The trial court denied Appellant’s post-sentence
         motion in an order entered] on March 4, 2013. [Trial Court
         Order, 3/4/13, at 1.] Appellant never filed a timely notice
         of appeal to the Superior Court. However, on October 11,
         2013, Appellant’s plea counsel filed an untimely notice of
         appeal at 2878 EDA 2013, which was ultimately withdrawn
         by plea counsel on November 26, 2013.

         On March 3, 2014, Appellant filed a pro se PCRA petition
         alleging[,] inter alia[,] that plea counsel [was ineffective
         because he] failed to file a timely notice of appeal. On
         March 5, 2014, an order was entered appointing Steve
         Molineux, Esquire [(hereinafter “Attorney Molineux”)] as
         PCRA counsel.

PCRA    Court   Opinion,   3/30/15,   at   2-3   (some   internal   citations   and

capitalization omitted).

       On November 5, 2014, Attorney Molineux filed a “no merit” letter and

a petition to withdraw as counsel, pursuant to Commonwealth v. Turner,

544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). On November 26, 2014, the PCRA court entered an

order granting Attorney Molineux’s petition to withdraw as counsel and

providing Appellant with notice that it intended to dismiss Appellant’s PCRA


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petition in 20 days, without holding a hearing. PCRA Court Order, 11/26/14,

at 1; see also Pa.R.Crim.P. 907(1). On January 9, 2015, the PCRA court

entered an order dismissing Appellant’s PCRA petition without a hearing.

       Appellant filed a timely, pro se notice of appeal from the PCRA court’s

dismissal order and Appellant has filed a pro se brief to this Court.1 We now

affirm the dismissal of Appellant’s untimely PCRA petition.

       As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by

evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

       The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.        This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).          Further,
____________________________________________


1
  In its opinion, the PCRA court requests that we remand the case so that
Appellant’s direct appeal rights could be reinstated nunc pro tunc. PCRA
Court Opinion, 3/30/15, at 3. The Commonwealth filed a brief in response
to Appellant’s brief, and also suggested that this Court should remand this
case to the PCRA court for an evidentiary hearing on the alleged denial of
Appellant’s direct appeal rights. Commonwealth’s Brief, at 5. Unfortunately,
because Appellant’s PCRA petition was untimely, we cannot do as the PCRA
court and the Commonwealth request.



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since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     In the case at bar, Appellant was sentenced in open court on January

23, 2013; Appellant then filed an untimely post-sentence motion on

Tuesday, February 5, 2013.     Given that Appellant’s post-sentence motion

was untimely, the filing of the post-sentence motion did not toll the time-

period for filing a notice of appeal to this Court.   Pa.R.Crim.P. 720(A)(3);

Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super. 2004) (en banc)

(“where the defendant does not file a timely post-sentence motion, there is

no basis to permit the filing of an appeal beyond 30 days after the

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imposition of sentence”); see also Pa.R.Crim.P. 720 cmt. (“[i]f no timely

post-sentence motion is filed, the defendant’s appeal period runs from the

date sentence is imposed”). Appellant was thus required to file his notice of

appeal “within 30 days of imposition of sentence” – or, by February 22,

2013. Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(a). Appellant did not do so.

     Since Appellant did not file a timely post-sentence motion or a timely

notice of appeal in this case, Appellant’s judgment of sentence became final

at the end of the day on February 22, 2013. Pa.R.A.P. 903(a); 42 Pa.C.S.A.

§ 9454(b)(3). Appellant then had until Monday, February 24, 2014 to file a

timely PCRA petition. 42 Pa.C.S.A. § 9545(b). As Appellant did not file his

PCRA petition until March 3, 2014, the current petition is manifestly untimely

and the burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-

year time-bar, the PCRA demands that the petitioner properly plead all

required elements of the relied-upon exception).

     Here, Appellant claims to invoke the “after-discovered facts” exception

to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                     ...

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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[;]

                                       ...

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S.A. § 9545(b).

      Thus, to properly invoke the after-discovered facts exception, the

petitioner is statutorily required to file his petition “within 60 days of the

date the claim could have been presented.” Id. As our Supreme Court has

explained, to satisfy this “60-day requirement,” a petitioner must “plead and

prove that the information on which he relies could not have been obtained

earlier, despite the exercise of due diligence.” Commonwealth v. Stokes,

959 A.2d 306, 310-311 (Pa. 2008); Commonwealth v. Breakiron, 781

A.2d 94, 98 (Pa. 2001).    Moreover, because the “60-day requirement” of

section 9545(b)(2) is a statutory mandate, the requirement is “strictly

enforced.” Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.

2010).

      Within Appellant’s PCRA petition, Appellant claims that his plea counsel

was ineffective for failing to file a timely notice of appeal from Appellant’s

judgment of sentence and then “l[ying to Appellant] that he ha[d] filed” the

notice of appeal.    Appellant’s Pro Se PCRA Petition, 3/3/14, at 5.       As




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evidence of this ineffectiveness, Appellant attached the following exhibits to

his PCRA petition:

      1) A letter from Appellant’s plea counsel to Appellant, dated August 1,

       2013, wherein Appellant’s plea counsel informed Appellant that a

       notice of appeal had been filed in the case. Appellant’s “Exhibit A,” at

       1;

      2) A letter from the Superior Court of Pennsylvania’s Office of the

       Prothonotary to Appellant, dated September 16, 2013, informing

       Appellant that “a review of [the Superior Court] dockets does not

       reveal that a notice of appeal has been forwarded to this office in”

       Appellant’s case. Appellant’s “Exhibit B,” at 1;

      3) A letter from Appellant’s plea counsel to Appellant, dated October

       11, 2013, wherein Appellant’s plea counsel stated:       “I received your

       correspondence regarding the matter of Commonwealth v. Singh. . .

       .    I cannot find a copy of the Notice of Appeal that I filed

       approximately 8 ½ months ago.         I have enclosed a copy of a new

       notice that I filed on your behalf.” Appellant’s “Exhibit C,” at 1;

      4) A letter from Appellant’s plea counsel to Appellant, dated December

       2, 2013, informing Appellant: “Kindly be advised that your Appeal in

       the matter of Commonwealth v. Singh has been withdrawn.                In

       order to have your Appeal formally re-instated, you must file a post-




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       conviction relief act petition asking for your Appellant [sic] Rights to be

       reinstated.” Appellant’s “Exhibit F,” at 1; and,

      5) A per curiam order from the Pennsylvania Superior Court in

       Commonwealth v. Singh, ___ A.3d ___, 2878 EDA 2013 (Pa. Super.

       2013), which was entered on November 25, 2013, declaring: “[u]pon

       consideration of Appellant’s “Petition to Withdraw Notice of Appeal,”

       filed by [Appellant’s plea counsel], the appeal is WITHDRAWN without

       prejudice to Appellant’s right to apply for relief in the trial court via the

       [PCRA].” Appellant’s “Exhibit G,” at 1.

       From the above, it is apparent that – at the latest – it was on or about

December 2, 2013, that Appellant became aware of the fact that his plea

counsel had failed to file a timely notice of appeal from the judgment of

sentence and then “lied [to Appellant] that he ha[d] filed” the notice of

appeal. Appellant’s Pro Se PCRA Petition, 3/3/14, at 5. Indeed, Appellant’s

own evidence demonstrates that, on December 2, 2013, Appellant’s plea

counsel wrote a letter to Appellant, informing Appellant that the notice of

appeal had been withdrawn and that, for Appellant to have his direct appeal

rights reinstated, Appellant needed to “file a post-conviction relief act

petition asking for [his] [appellate] rights to be reinstated.”         Appellant’s

“Exhibit F,” at 1 (some internal capitalization omitted).

       Appellant did not file his PCRA petition within one year of the date that

his judgment of sentence became final or within 60 days of learning that his


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plea counsel had failed to file a timely notice of appeal on his behalf.   As

such, Appellant’s PCRA petition is manifestly untimely and our “courts are

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).         We must therefore

conclude that the PCRA court properly dismissed Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015




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