J-S12010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLARENCE A. YATES                          :
                                               :
                       Appellant               :   No. 3366 EDA 2018

               Appeal from the Order Entered October 12, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004823-1998


BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY SHOGAN, J.:                                  FILED JUNE 9, 2020

        Appellant, Clarence A. Yates, appeals pro se from the October 12, 2018

order denying his untimely post-sentence motion.            It is apparent that

Appellant’s filing actually was an untimely seventh petition for collateral relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After

review, we affirm the order dismissing Appellant’s filing, but we do so on

grounds different than the lower court. See Commonwealth v. Wilcox, 174

A.3d 670, 674 n.4 (Pa. Super. 2017) (explaining that the Superior Court is

not bound by the rationale of the lower court, and we may affirm the trial

court’s order on any basis supported by the record).




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       In its Pa.R.A.P. 1925(a) opinion, the common pleas court set forth

aspects of the convoluted procedural history of this case, which we have

augmented where necessary, as follows:

              The factual basis of Appellant’s case has been recited a
       multitude of times for purposes of Appellant’s various appeals. As
       the factual basis of Appellant’s conviction is not relative to the
       current appeal issue, it need not be recited in its entirety; rather,
       this [c]ourt sets forth the following brief synopsis for the record.

             Following a jury trial conducted approximately twenty years
       ago,[1]Appellant was convicted of [two counts each of] rape [and]
       corrupting the morals of a minor, and [one count of] involuntary
       deviate sexual intercourse.[2] The victim was Appellant’s ten-
       year-old niece. On April 26, 1999, Appellant was sentenced by
       the Honorable Frank T. Hazel, to thirteen to forty-five years of
       incarceration.

             Appellant filed a direct appeal. The Superior Court affirmed
       the judgment of sentence in an opinion filed on June 22, 2000,
       and the Pennsylvania Supreme Court denied a petition for
       allowance of appeal on December 29, 2000.[3]

              Appellant filed his first PCRA petition and, after an
       evidentiary hearing, the request for relief was denied. Denial of
       relief was affirmed by the Superior Court in a memorandum
       opinion on August 9, 2004.[4] Appellant then filed his second PCRA
____________________________________________


1 Appellant’s three-day jury trial concluded on March 19, 1999. Direct Appeal
Trial Court Opinion, 12/3/99, at 1.

2   18 Pa.C.S. §§ 3121(a)(6), 6301(a), and 3123(a)(6), respectively.

3 Commonwealth v. Yates, 760 A.2d 435, 1748 EDA 1999 (Pa. Super. filed
June 22, 2000) (unpublished memorandum), appeal denied, 764 A.2d 1069,
538 MAL 2000 (Pa. filed December 29, 2000).

4   Commonwealth v. Yates, 860 A.2d 1137, 2132 EDA 2002 (Pa. Super.
filed August 9, 2004) (unpublished memorandum).



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       petition. An evidentiary hearing was conducted, and the petition
       was dismissed as untimely. Appellant appealed, and the Superior
       Court affirmed on March 27, 2006. A petition for allowance of
       appeal was denied by the Pennsylvania [Supreme] Court on
       December 5, 2006.[5]

             On July 19, 2010, Appellant filed a “Petition Requesting
       Post-Conviction DNA Testing” which was ultimately dismissed. On
       November 23, 2010, Appellant filed a third PCRA petition which
       was dismissed without an evidentiary hearing. [Appellant did not
       appeal the dismissal.] On February 4, 2011, Appellant filed
       “Addendum Newly Discovered Evidence and Alibi Witness
       Pursuant to Pa Rules of Criminal Procedure.” This [c]ourt properly
       treated the motion as a fourth PCRA petition[,] and it was
       dismissed without an evidentiary hearing. On April 15, 2011,
       Appellant filed a notice of appeal. The appeal was quashed by the
       Superior Court on November 2, 2011.[6]

             On August 21, 2015, Appellant filed a petition alleging that
       his sentence was illegal pursuant to Alleyne v. United States, 133
       S.Ct. 2151 (2013). This [c]ourt properly treated the petition as
       Appellant’s fifth PCRA Petition.    The petition was ultimately
       dismissed without a hearing. [Appellant did not file an appeal.7]

            On October 10, 2018, Appellant filed a “Motion to Modify
       and Reduce Sentence” pursuant to Pa.R.Crim.P. 720, wherein he
____________________________________________


5 Commonwealth v. Yates, 897 A.2d 524, 417 EDA 2005 (Pa. Super. filed
January 31, 2006) (unpublished memorandum), appeal denied, 912 A.2d 838,
599 MAL 2006 (Pa. filed December 5, 2006).

6 Commonwealth v. Yates, 38 A.3d 910, 1071 EDA 2011 (Pa. Super. filed
November 2, 2011) (unpublished memorandum).

7 Appellant also filed a civil rights action in federal court that was dismissed
on August 8, 2017. Reconsideration was denied. Yates v. Wetzel, 2017 WL
3394477, 3:CV-15-0756 (M.D.Pa. filed August 8, 2017), reconsideration
denied, 2018 WL 1203618, 3:CV-15-0756 (M.D.Pa. filed March 8, 2018).

       While the federal action was pending, Appellant filed a “Writ of
Mandamus” on March 13, 2017, which the common pleas court treated as
Appellant’s sixth PCRA petition. The PCRA court dismissed the petition on
April 10, 2017. Order, 4/10/17. Appellant did not appeal the dismissal.

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      asked the [c]ourt to reduce or modify his sentence due to his
      regret for the crime committed as well as the programs he has
      taken while in prison. This [c]ourt issued an order dismissing the
      Motion, as it was well beyond ten days after the imposition of
      sentence. [Order, 10/12/18.]

Pa.R.A.P. 1925(a) Opinion, 11/25/19, at 1–3 (footnote omitted).

      Appellant mailed a pro se notice of appeal directly to this Court’s Middle

District Prothonotary rather than correctly filing the notice of appeal with the

Delaware County Office of Judicial Support. The Superior Court Middle District

Prothonotary date-stamped the pro se notice of appeal as received on

November 14, 2018, but it did not send the pro se notice to the Delaware

County filing office as required by Pa.R.A.P. 905(a)(4), which provides, in

pertinent part, as follows:

      Rule 905. Filing of Notice of Appeal

      (a) Filing with clerk.

                                    * * *

            (4) If a notice of appeal is mistakenly filed in an
            appellate court, or is otherwise filed in an incorrect
            office within the unified judicial system, the clerk
            shall immediately stamp it with the date of
            receipt and transmit it to the clerk of the court
            which entered the order appealed from, and upon
            payment of an additional filing fee the notice of
            appeal shall be deemed filed in the trial court on
            the date originally filed.

Pa.R.A.P. 905(a)(4) (emphases added).       Instead, the Middle District filing

office forwarded the pro se notice of appeal to the Superior Court Eastern

District Prothonotary, where staff discovered that the date of the order



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appealed was not indicated. This Court issued a rule to show cause why the

appeal should not be quashed “as having been taken from a purported order

which is not entered upon the appropriate docket of the lower court.” Order,

2/25/19. Appellant filed a pro se response. On October 15, 2019, this Court

entered an order referring the issue raised in the rule to show cause “to the

panel assigned to decide the merits of this appeal,” and further directed our

Prothonotary “to forward the notice of appeal filed with this Court on

November 14, 2018, to the trial court for filing.” Order, 10/15/19. Upon its

receipt in the common pleas court, the lower court docketed the notice of

appeal on November 19, 2019.

      We are compelled to consider the timeliness of the appeal.

            The timeliness of an appeal and compliance with the
      statutory provisions granting the right to appeal implicate an
      appellate court’s jurisdiction and its competency to act. . . .
      Absent extraordinary circumstances, an appellate court lacks the
      power to enlarge or extend the time provided by statute for taking
      an appeal. . . . Thus, an appellant’s failure to appeal timely an
      order generally divests the appellate court of its jurisdiction to
      hear the appeal.

Commonwealth v. Williams, 106 A.3d 583, 587 (Pa. 2014) (citations

omitted); see also Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super.

2016) (This Court can raise timeliness of appeal “sua sponte, as the issue is

one of jurisdiction to entertain the appeal.”).

      Pursuant to Pa.R.A.P. 905(a)(4), the instant notice of appeal thus has

an ostensible filing date of November 14, 2018, the date it originally was

received by the Superior Court Middle District Prothonotary.        Pa.R.A.P.

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905(a)(4). As noted supra, the order appealed was filed on October 12, 2018.

The thirty-day appeal period expired on Tuesday, November 13, 2018, the

thirty-second day, because the thirtieth day, November 11, 2018, fell on a

Sunday, and Monday, November 12, 2018, was Veterans’ Day, a legal holiday.

See 1 Pa.C.S. § 1908 (Whenever the last day of an appeal period falls on a

Saturday, Sunday, or legal holiday, “such day shall be omitted from the

computation.”). Thus, the instant notice of appeal filed November 14, 2018,

facially was filed one day beyond the time permitted.

       We observe, however, that Appellant’s pro se notice of appeal is dated

October 30, 2018. Appellant is incarcerated, and therefore, pursuant to the

prisoner mailbox rule, we deem the notice of appeal to have been timely.8

See Commonwealth v. Jordan, 182 A.3d 1046, 1048 (Pa. Super. 2018),

appeal denied sub nom., Commonwealth v. Vasquez Jordan, 197 A.3d 711

(Pa. 2018) (petition dated March 16, 2016, that was received in trial court on

March 21, 2016, is deemed to have been filed on March 16, 2016, pursuant


____________________________________________


8 While there are no other indications in the record regarding when Appellant
delivered his pro se motion to prison authorities for mailing, our rule-to-show-
cause order did not require that Appellant provide documents specific to this
concern. Moreover, we observe that the Commonwealth does not challenge
the timeliness of the notice of appeal. Commonwealth’s Brief at 3 n.2; see
Commonwealth v. DiClaudio, 210 A.32d 1070, 1074 (Pa. Super. 2019) (pro
se notice of appeal considered timely under prisoner mailbox rule despite the
fact that the record does not indicate when the appellant delivered his
document to prison authorities for mailing, where Commonwealth does not
challenge timeliness and the record reveals filing office’s failure to forward pro
se notice of appeal that violated appellate rules and constituted breakdown in
operation of the courts).

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to the prisoner mailbox rule); see also Commonwealth v. Chambers, 35

A.3d 34 (Pa. Super. 2011) (explaining prisoner mailbox rule provides that pro

se prisoner’s document is deemed filed on date he delivers it to prison

authorities for mailing).

      As we opined supra, Appellant’s Motion to Modify and Reduce Sentence

should have been treated as a serial PCRA petition. It is well settled that “the

PCRA is intended to be the sole means of achieving post-conviction

relief. . . . [A]ny petition filed after the judgment of sentence becomes final

will be treated as a PCRA petition.” Commonwealth v. Taylor, 65 A.3d 462,

465–466 (Pa. Super. 2013) (citations omitted). Accordingly, any petition for

post-conviction collateral relief will generally be considered under the auspices

of the PCRA, notwithstanding the title given to the petition, if the petition

raises issues cognizable under the PCRA. Commonwealth v. Hutchins, 760

A.2d 50, 52 n.1 (Pa. Super. 2000); 42 Pa.C.S. § 9542.

      Any petition for post-conviction relief, including a second or subsequent

one, must be filed within one year of the date the judgment of sentence

becomes final, unless one of the exceptions set forth in 42 Pa.C.S. §

9545(b)(1)(i)–(iii) applies.    This time requirement is mandatory and

jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).




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      Appellant’s judgment of sentence became final on March 29, 2001, upon

the expiration of the ninety-day period to file a petition for writ of certiorari

with the United States Supreme Court.        See 42 Pa.C.S. § 9545(b)(3) (for

PCRA purposes, a judgment of sentence becomes final at the conclusion of

direct review, including discretionary review in the United States Supreme

Court or the Supreme Court of Pennsylvania, or at expiration of time for

seeking review); United States Supreme Court Rule 13 (effective October 2,

1995, amended effective May 1, 1997) (petition for writ of certiorari to review

judgment of sentence deemed timely when it is filed within ninety days after

discretionary review has been denied by state’s highest court). Therefore, in

order to comply with the filing requirements of the PCRA, Appellant’s petition

had to be filed by March 29, 2002. As the petition was filed over sixteen years

later, on October 10, 2018, it is patently untimely.

      Section 9545 of the PCRA provides the following three exceptions that

allow for review of an untimely PCRA petition: (1) petitioner’s inability to raise

a claim as a result of governmental interference; (2) the discovery of

previously unknown facts or evidence that would have supported a claim; or

(3) a newly-recognized constitutional right. 42 Pa.C.S. § 9545 (b)(1)(i)–(iii).

The burden is on the petitioner to plead and prove facts that establish one of

the statutory exceptions. Commonwealth v. Pew, 189 A.3d 486, 488 (Pa.




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Super. 2018). In addition, any exception must be raised within sixty days of

the date the claim could have been presented.9 42 Pa.C.S. § 9545(b)(2).

       In order to examine the petition’s timeliness, we must consider what

Appellant has raised. Appellant’s Motion to Modify and Reduce Sentence, the

denial of which he here appeals, presented only two claims: Appellant learned

at some unspecified date in 2016 that he suffers from PTSD, and he regrets

“what happen[ed] 20 years ago and if I could take it back I would . . . .”

Motion to Modify and Reduce Sentence, 10/10/18, at ¶3. Neither of these

allegations fits within any of the exceptions. Even if they did, they were not

raised within sixty days of 2016, when a claim could have been presented.

Thus, the “petition” is untimely and no exceptions apply.

       Furthermore, even if an exception could be considered applicable, we

observe that appellate briefs must materially conform to the briefing

requirements set forth in the Pennsylvania Rules of Appellate Procedure.

Pa.R.A.P. Chapter 21.          Pennsylvania Rule of Appellate Procedure 2111

provides specific guidelines regarding the content of an appellant’s brief. In



____________________________________________


9  On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section, which is
December 24, 2017, or thereafter. Here, Appellant’s alleged claim arose “in
2016” when Appellant “found out . . . he was Suffering from [post traumatic
stress disorder (“PTSD”)] . . . .” Therefore, the amendment is inapplicable
because Appellant’s claim preceded December 24, 2017.

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addition, Pa.R.A.P. 2114 through Rule 2119 specify in greater detail the

material to be included in briefs on appeal. Further, Pa.R.A.P. 2101 provides:

      Briefs and reproduced records shall conform in all material
      respects with the requirements of these rules as nearly as the
      circumstances of the particular case will admit, otherwise they
      may be suppressed, and, if the defects are in the brief or
      reproduced record of the appellant and are substantial, the appeal
      or other matter may be quashed or dismissed.

Pa.R.A.P. 2101 (“Conformance with Requirements”). Moreover, “[a]lthough

this Court is willing to liberally construe materials filed by a pro se litigant, pro

se status confers no special benefit upon the appellant. To the contrary, any

person choosing to represent himself in a legal proceeding must, to a

reasonable extent, assume that his lack of expertise and legal training will be

his undoing.” In re Ullman, 995 A.2d 1207, 1211–1212 (Pa. Super. 2010).

Accordingly, pro se litigants must comply with the procedural rules set forth

in the Pennsylvania Rules of Court. Commonwealth v. Tchirkow, 160 A.3d

798, 804 (Pa. Super. 2017) (citation omitted).

      The brief filed by Appellant fails to conform to the Pennsylvania Rules of

Appellate Procedure.     There is no identification of the order appealed, no

statement of the case, and no summary of argument.               Most egregiously,

however, there is no statement of the questions involved.           Pa.R.A.P. 2116

addresses the statement of questions involved and provides, in pertinent part,

as follows:

      Rule 2116. Statement of Questions Involved




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      (a) General rule. The statement of the questions involved must
      state concisely the issues to be resolved, expressed in the terms
      and circumstances of the case but without unnecessary detail.
      The statement will be deemed to include every subsidiary question
      fairly comprised therein. No question will be considered
      unless it is stated in the statement of questions involved or
      is fairly suggested thereby.

Pa.R.A.P. 2116(a) (emphasis added).            The absence of a statement of

questions involved is a significant impediment to our judicial review and

precludes our review of any issues.

      Equally problematic is the fact that Appellant’s brief discusses and

focuses upon Richardson v. Superintendent Coal Township SCI, 905 F.3d

750 (3d Circ. 2018), a case from the Third Circuit Court of Appeals that

Appellant asserts presents a claim of “new legal facts.” Appellant’s Brief at 2–

4. Such claim and argument never were presented to the lower court. Indeed,

as noted supra, Appellant’s Motion to Modify and Reduce Sentence presented

only two claims: Appellant suffers from PTSD, and he regrets raping his niece.

Motion to Modify and Reduce Sentence, 10/10/18, at ¶3.            The failure to

present such claim to the lower court is an added basis in support of waiver

on appeal. Commonwealth v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018)

(Raising new theories of relief for first time on appeal results in waiver).

      Consequently, because the instant petition was untimely and no

exceptions apply, the lower court lacked jurisdiction to address the claims

presented. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).


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Likewise, we lack the authority to address the merits of any substantive claims

raised in the PCRA petition. Commonwealth v. Bennett, 930 A.2d 1264,

1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/09/2020




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