J-S72041-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                         Appellee          :
                                           :
                    v.                     :
                                           :
MELVIN LINDSAY,                            :
                                           :
                         Appellant         :     No. 893 WDA 2014

               Appeal from the PCRA Order Entered April 23, 2014,
                in the Court of Common Pleas of Fayette County,
               Criminal Division at No(s): CP-26-CR-0001091-2005

BEFORE: BENDER, P.J.E., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED DECEMBER 15, 2014

      Melvin Lindsay (Appellant) appeals from the order entered on April 23,

2014, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The background underlying this matter can be summarized in the

following manner.        A jury convicted Appellant of assaulting a correctional

officer in a facility where he was serving a sentence on unrelated

convictions.    The trial court sentenced Appellant on November 17, 2005.

Appellant appealed, and this Court affirmed the judgment of sentence on

July 18, 2007.      Commonwealth v. Lindsay, 932 A.2d 256 (Pa. Super.

2007) (unpublished memorandum).

      On November 14, 2013, Appellant filed the instant PCRA petition, his

second, wherein he claimed that his sentence is illegal. On November 22,



* Retired Senior Judge assigned to the Superior Court.
J-S72041-14

2013, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907 that it

intended to dismiss Appellant’s PCRA petition without holding an evidentiary

hearing.    The court concluded that Appellant’s claim was meritless.

Appellant filed a reply to the court’s notice.   On April 23, 2014, the court

entered an order formally dismissing Appellant’s petition.

      The PCRA court’s docket indicates that Appellant filed his notice of

appeal on May 29, 2014. Appellant dated the notice of appeal as May 22,

2014. On June 10, 2014, the PCRA court directed Appellant to comply with

Pa.R.A.P. 1925(b).   Appellant never filed a 1925(b) statement.     The PCRA

court issued a “Statement in lieu of Opinion” wherein the court stated that

Appellant mailed his 1925(b) statement directly to the PCRA judge. In his

brief to this Court, Appellant asks us to consider one question, namely,

“Whether the court erred in sentencing [Appellant] using the wrong prior

record score; imposing the cost of prosecution on him, and the wrong

sentencing level.”     Appellant’s Brief at 3 (unnecessary capitalization

omitted).

      We begin by observing that Appellant had until May 23, 2014 in order

to file timely a notice of appeal.    Pa.R.A.P. 903(a).      Because the PCRA

court’s docket indicates that Appellant filed his notice of appeal on May 29,

2014, Appellant’s notice of appeal is untimely on its face. However, because

he is a pro se prisoner, Appellant benefits from the “prisoner mailbox rule.”




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      “[I]n the interest of fairness, the prisoner mailbox rule provides that a

pro se prisoner's document is deemed filed on the date he delivers it to

prison authorities for mailing.” Commonwealth v. Chambers, 35 A.3d 34,

38 (Pa. Super. 2011). The rule allows this Court “to accept any reasonably

verifiable evidence of the date that the prisoner deposits the appeal with the

prison authorities....” Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.

Super. 2002).

      Instantly, Appellant’s notice of appeal is dated May 22, 2014, which

arguably supports a conclusion that Appellant timely filed his notice of

appeal.      Moreover, there is nothing of record that would indicate that

Appellant did not file his notice of appeal on or shortly after he dated the

notice.   Thus, for the purposes of this matter, we conclude that Appellant

timely filed his notice of appeal.

      Next, because he failed to file a Pa.R.A.P. 1925(b) statement,

Appellant waived all issues on appeal. Commonwealth v. Butler, 812 A.2d

631 (Pa. 2002). Even if Appellant had properly filed a 1925(b) statement,

he still would not be entitled to relief because he untimely filed his PCRA

petition.1

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court's rulings are supported by the evidence of



1
  We may raise sua sponte issues regarding the timeliness of a PCRA
petition. Commonwealth v. Gandy, 38 A.3d 899, 902 (Pa. Super. 2012).

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record and free of legal error.    Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010).

        Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).        For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.”    Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition. Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

        This Court affirmed Appellant’s judgment of sentence on July 18,

2007. Appellant had 30 days to petition our Supreme Court for allowance of

appeal. Pa.R.A.P. 1113(a). He did not do so in a timely manner.2 Thus, for

purposes of the PCRA, Appellant’s judgment became final on August 17,

2007.    He, therefore, had until August 17, 2008, in order to file timely a

PCRA petition.

        Because Appellant untimely filed his PCRA petition on November 14,

2013, he had the burden of pleading and offering to prove one of the

following exceptions.

2
  According to Appellant, he untimely filed a petition for allowance of appeal
in our Supreme Court on August 21, 2007. Appellant’s Brief at 6.

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       (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).

        Appellant’s PCRA petition did not allege any of the statutory

exceptions to the PCRA’s one year time bar. Appellant, therefore, untimely

filed his PCRA petition, and the PCRA court was without jurisdiction to

consider the merits of that petition.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2014




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