J-S94029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ARTHUR W. NESBITT

                            Appellant                  No. 599 MDA 2016


                  Appeal from the PCRA Order February 23, 2016
                 In the Court of Common Pleas of Luzerne County
    Criminal Division at No(s): CP-40-CR-0000575-2002, CP-40-CR-0000721-
      2002, CP-40-CR-0000721-2002, CP-40-CR-0001677-2002, CP-40-CR-
                                  0001678-2002


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                              FILED APRIL 17, 2017

        Appellant, Arthur W. Nesbitt, appeals from the order entered February

23, 2016, denying as untimely his serial petition for collateral relief filed

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

following a trial resulting in his conviction for involuntary deviate sexual

conduct, endangering welfare of children, and corruption of minors.       We

quash.

        On October 23, 2002, a jury convicted Appellant of numerous sexual

offenses involving the molestation of children.      On January 28, 2003, he

received an aggregate sentence of twenty-nine and one-half to one hundred

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S94029-16



eighteen years of incarceration.    He was found to be a sexually violent

predator. Appellant did not appeal from his judgment of sentence, and as a

result, his sentence became final on February 27, 2003. See 42 Pa.C.S. §

9545(b)(3).

      Appellant timely filed his first PCRA petition on February 3, 2003; the

petition was ultimately denied. This Court affirmed the denial of Appellant’s

petition on July 1, 2004. See Commonwealth v. Nesbitt, 858 A.2d 1279

(Pa. Super. 2004) (unpublished memorandum).             Appellant filed two

subsequent petitions seeking PCRA relief but did not appeal their denial.

      On September 22, 2015, Appellant pro se untimely filed the instant

PCRA petition, his fourth, arguing that his sentence is illegal under Alleyne

v. United States, 133 S. Ct. 2151 (2013). On January 8, 2016, the PCRA

court sent Appellant notice pursuant to Pa.R.Crim.P.907 that his petition

would be dismissed without a hearing.

      On February 23, 2016, the PCRA court dismissed Appellant’s petition

as untimely. The order was mailed to Appellant, first class, that same day.

Thus, the notice of appeal was due by March 24, 2016.          See Pa.R.A.P.

108(a)(1) (day of entry of an order shall be the day the clerk of courts mails

or delivers copies of the order to the parties); Pa.R.A.P. 903(a) (notice of

appeal shall be filed within thirty days after the entry of the order from

which the appeal is taken).




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       A pro se prisoner’s petition for review must be considered filed for

purposes of Pa.R.A.P. 903 when the appeal is deposited with prison officials

or placed in the prison mailbox. See Commonwealth v. Jones, 700 A.2d

423, 426 (Pa. 1997); see also Smith v. Pennsylvania Board of

Probation and Parole, 683 A.2d 278, 279-81 (Pa. 1996).               To prove an

appeal timely filed, an appellant may include a “cash slip” indicating that the

Department of Corrections charged the prison bank account for postage, or a

Postal Form 3817, certificate of mailing. See Jones, 700 A.2d at 426.

       Appellant, who is incarcerated, pro se filed this appeal. He hand dated

his notice of appeal February 27, 2016, but provided no proof of service.1

The trial court docket indicates that the notice of appeal was filed on April 7,

2016. On May 16, 2016, this Court issued a Rule to Show Cause why the

appeal should not be quashed.            Appellant timely responded, and the rule

was discharged.       However, the mailing slip Appellant provided as proof is

dated April 30, 2016, which does not prove a timely appeal.

       As Appellant has provided no proof that he timely filed the instant

appeal other than his self-dated notice of appeal, we are constrained to

quash. See Jones, 700 A.2d at 426.

       Further, Appellant’s pending Motion to Proceed In Forma Pauperis is

denied. Appellant has failed to comply with Pa.R.A.P. 561 in that his petition
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1
 The record does not include the envelope and only the self-dated notice of
appeal is available.



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does not assert the truthfulness of his statements nor has he recognized the

penalties that he may incur.2 See Pa.R.A.P. 561. Accordingly, Appellant’s

petition does not substantially comply with Pa.R.A.P. 561.

       Motion denied; appeal quashed.

       Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




____________________________________________


2
  A petition seeking in forma pauperis status must include an accompanying
verified statement substantially conforming to the requirements of Pa.R.A.P.
561. Those requirements include a statement recognizing that a false
statement in support of a petition will subject the petitioner to penalties
provided by the law.



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