J-S72012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LONNIE SPELLMAN,

                            Appellant                  No. 2904 EDA 2016


             Appeal from the PCRA Order Entered August 24, 2016
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010295-2009


BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED JANUARY 22, 2018

        Appellant, Lonnie Spellman, appeals pro se from the post-conviction

court’s August 24, 2016 order denying, as untimely, his second petition

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

affirm.

        The facts underlying Appellant’s convictions are not necessary to our

disposition of this appeal.      We briefly summarize the procedural history of

his case as follows. On January 6, 2010, Appellant was convicted of several

firearm offenses following a bench trial.       On February 18, 2010, he was

sentenced to an aggregate term of 5 to 10 years’ incarceration. Appellant

did not file a direct appeal.

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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       On May 10, 2010, Appellant filed a timely, pro se PCRA petition.

Counsel was appointed and filed an amended petition on Appellant’s behalf.

A PCRA hearing was conducted on February 27, 2012, at the conclusion of

which the court entered an order dismissing Appellant’s petition. He filed a

timely notice of appeal, however his counsel at that point, Emily Cherniak,

Esq., did not timely comply with the PCRA court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. Accordingly,

this Court deemed all of Appellant’s issues waived, and affirmed the order

dismissing his PCRA petition. See Commonwealth v. Spellman, No. 883

EDA 2012, unpublished memorandum at 6-8 (Pa. Super. filed Dec. 4, 2013).

       Over one year later, on December 26, 2014, Attorney Cherniak filed a

PCRA petition on Appellant’s behalf, seeking the reinstatement of his right to

appeal from the denial of his first PCRA petition.1    On May 2, 2016, the

Commonwealth filed a responsive brief, arguing that Appellant’s December

26, 2014 petition was patently untimely and, as such, the PCRA court did

not have jurisdiction to grant him the requested relief of reinstating his

appeal rights.      On August 24, 2016, the PCRA court issued an order

dismissing Appellant’s petition.




____________________________________________


1 As Attorney Cherniak was essentially claiming her own ineffectiveness in
that petition, she concurrently filed a motion to withdraw as Appellant’s
counsel. However, the court did not rule on that motion to withdraw.



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     Appellant filed a timely, pro se notice of appeal on September 9, 2016.

On September 16, 2016, Attorney Cherniak filed another motion to withdraw

as his counsel, which the court subsequently granted. Appellant then filed a

timely, pro se Rule 1925(b) statement. The PCRA court filed its opinion on

April 24, 2017.

     Herein, Appellant raises three issues for our review:

     [I.] Whether the [PCRA] court erred in denying post[-]conviction
     relief…, where [Appellant] requested the court to restore the
     right to appeal the dismissal of his first PCRA petition?

     [II.] Whether the [PCRA] court erred in denying post[-
     ]conviction relief, where the courts and the Commonwealth did
     not address the issues of mandatory sentencing, and biasness at
     the sentencing stage?

     [III.] Whether the [PCRA] court erred in denying post[-]
     conviction relief, where it failed to send a statement pursuant to
     [Pa.R.Crim.P.] 907, to pro se [Appellant] who is in custody?

Appellant’s Brief at 6 (unnumbered; unnecessary capitalization omitted).

     This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.   Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.   Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of



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the petition).   Under the PCRA, 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 following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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:

            (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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final on March 20,

2010, at the expiration of the thirty-day period for filing an appeal from his

judgment of sentence. See 42 Pa.C.S. § 9545(b)(3) (stating judgment of

sentence becomes final at the conclusion of direct review or the expiration of



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the time for seeking the review); Pa.R.A.P. 903(a) (directing that a notice of

appeal to Superior Court must be filed within 30 days after the entry of the

order from which the appeal is taken).           Accordingly, his present petition,

filed on December 26, 2014, is patently untimely and, for this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S.

§ 9545(b).

       Appellant fails to meet this burden, as he does not argue that any

exception applies in his case.         Instead, Appellant avers that the evidence

was insufficient to sustain his convictions, see Appellant’s Brief at 11-12,

and that the trial court erred in fashioning his sentence for various reasons,

see id. at 12-14. Neither of these arguments meets a timeliness exception.

Moreover, Appellant’s bald claim that “all prior counsel were ineffective for

failing to properly preserve” these issues also cannot satisfy one of the

above-stated exceptions.           Id. at 11; see also Commonwealth v.

Wharton, 886 A.2d 1120, 1127 (Pa. 2005) (“It is well settled that

allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”) (citations omitted).2
____________________________________________


2 In any event, even if each of Appellant’s claims met a timeliness exception,
we would have to deem his arguments waived, as they could have been
raised in an appeal from his judgment of sentence, or in his prior PCRA
petition. See 42 Pa.C.S. § 9543(a)(3) (stating that to be eligible for PCRA
relief, the petitioner must show that the allegation of error has not been
waived); 42 Pa.C.S. § 9544(b) (stating “an issues is waived if the petitioner
(Footnote Continued Next Page)


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Finally, Appellant’s claim that the PCRA court erred by not issuing a

Pa.R.Crim.P. 907 notice of its intent to dismiss his petition does not warrant

relief because his petition is untimely. See Commonwealth v. Taylor, 65

A.2d 462, 468 (Pa. Super. 2013) (reiterating that, where a PCRA petition is

untimely, the court’s failure to issue a Rule 907 notice does not

automatically warrant reversal) (citing Commonwealth v. Pursell, 749

A.2d 911, 917 n.7 (Pa. 2000)).

      Accordingly, we discern no error in the PCRA court’s decision to

dismiss Appellant’s untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/18




(Footnote Continued) _______________________

could have raised it but failed to do so before trial, at trial, during unitary
review, on appeal or in a prior state post[-]conviction proceeding”).




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