J-A10038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL VEON

                            Appellant                 No. 1128 MDA 2014


                  Appeal from the PCRA Order June 10, 2014
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004656-2008


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                           FILED APRIL 10, 2015

        Appellant, Michael Veon, appeals from the order entered in the

Dauphin County Court of Common Pleas, denying his first petition brought

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

While serving as a member of the Pennsylvania legislature, Appellant used

public resources to further his own political campaigns. Appellant diverted

taxpayer monies to pay “bonuses” to campaign and legislative staffers for

campaign work.       Additionally, Appellant’s staffers performed the campaign

work during the legislative working day, further consuming public resources.


____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.
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      Following trial, a jury convicted Appellant of multiple counts of

restricted activities―conflict of interest, theft of services, theft by deception,

and criminal conspiracy. On June 18, 2010, the court sentenced Appellant

to an aggregate term of five (5) years nine (9) months to fourteen (14)

years’ imprisonment. Appellant filed post-sentence motions on Friday, July

2, 2010, which the court denied on October 26, 2010.

      Appellant filed a notice of appeal on November 24, 2010. On April 26,

2011, this Court issued a rule to show cause, directing Appellant to explain

why this Court should not quash his appeal as untimely filed. Appellant filed

a response on May 12, 2011. On May 18, 2011, this Court discharged the

show cause order without taking further action. This Court also referred the

timeliness issue to the merits panel assigned to Appellant’s case. This Court

noted, “The merits panel may revisit the timeliness issue.             Therefore,

Appellant should be prepared to address the issue….” (Order, filed 5/18/11,

at 1).   On December 13, 2012, a panel of this Court (with one dissent)

quashed the appeal as untimely filed.       See Commonwealth v. Veon, 64

A.3d 19 (Pa.Super. 2012) (unpublished memorandum).

      Appellant filed a counseled PCRA petition on April 26, 2013, arguing

prior counsel were ineffective for failing “to file timely post-[sentence]

motions and a timely notice of appeal after being specifically requested by

[Appellant] to appeal his conviction to the Pennsylvania Superior Court.”

(PCRA Petition, filed 4/26/13, at 4). On August 26, 2013, Appellant filed an


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amended PCRA petition, in which he continued to assert his claim of prior

counsels’ ineffectiveness.   The amended petition also included a list of

witnesses who would testify on Appellant’s behalf, as well as summaries of

the proposed witnesses’ testimony.

     On October 2, 2013, the Commonwealth filed a motion to dismiss

Appellant’s PCRA petition as untimely filed.   Also on October 2, 2013, the

Commonwealth filed a response to Appellant’s amended PCRA petition,

asserting:

        [Appellant] was sentenced on June 18, 2010.               His
        conviction became final on July 18, 2010, when the 30-day
        deadline for a timely appeal to the Superior Court passed.
        He therefore had until July 18, 2011…to file for relief under
        the PCRA. He, however, did not file his initial petition until
        April 2[6], 2013.

(Response to Amended PCRA Petition, filed 10/2/13, at 4).           The court

conducted argument on December 4, 2013.         On June 10, 2014, the court

granted the Commonwealth’s motion to dismiss and denied PCRA relief.

     Appellant timely filed a notice of appeal on July 9, 2014. On July 16,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).       Appellant timely

filed a Rule 1925(b) statement on August 6, 2014.

     As a preliminary matter, we must determine whether Appellant timely

filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

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PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003).   The most recent amendments to the PCRA, effective January 16,

1996, provide that a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830

A.2d 1273 (Pa.Super. 2003). A judgment is deemed final “at the conclusion

of direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.”          42 Pa.C.S.A. § 9545(b)(3).         “[I]n

circumstances in which no timely direct appeal is filed relative to a judgment

of sentence, and direct review is therefore unavailable, the one-year period

allowed for the filing of a post-conviction petition commences upon the

actual expiration of the time period allowed for seeking direct review, as

specified in the PCRA.” Commonwealth v. Brown, 596 Pa. 354, 361, 943

A.2d 264, 268 (2008).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, the

petition must allege and the petitioner must prove:

          (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;


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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; 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.A. § 9545(b)(1)(i)-(iii).   “As such, when a PCRA petition is not

filed within one year of the expiration of direct review, or not eligible for one

of the three limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been first brought,

the trial court has no power to address the substantive merits of a

petitioner’s PCRA claims.”    Commonwealth v. Gamboa-Taylor, 562 Pa.

70, 77, 753 A.2d 780, 783 (2000).

      Instantly, the court sentenced Appellant on June 18, 2010. Because

Appellant’s post-sentence motions were due on or before Monday, June 28,

2010, but untimely filed on Friday, July 2, 2010, his judgment of sentence

became final on Monday, July 19, 2010, upon expiration of the 30-day

period to file a direct appeal from the judgment of sentence.           See 42

Pa.C.S.A. § 9545(b)(3).    Appellant filed the current PCRA petition on April

26, 2013, almost three years after his judgment of sentence became final.

Thus, Appellant’s current prayer for relief is patently untimely. See Brown,

supra (explaining one-year period for filing PCRA petition commenced upon

expiration of time allowed for filing direct appeal, rather than upon


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disposition of untimely filed notice of appeal). See also Commonwealth v.

Hutchins, 760 A.2d 50 (Pa.Super. 2000) (stating one-year period for filing

PCRA petition commenced after expiration of time allowed for seeking

further review by Pennsylvania Supreme Court on direct appeal, even

though defendant later filed untimely petition for allowance of appeal, which

Supreme Court denied). Moreover, Appellant failed to plead or prove one or

more of the statutory exceptions to the PCRA timeliness requirements.2

Therefore, Appellant’s petition remains time-barred. Accordingly, we affirm.

       Order affirmed.

       Judge Jenkins did not participate in the consideration or decision of

this case.


____________________________________________


2
   In his brief, Appellant attempts to invoke an exception to the time
restrictions of the PCRA, arguing the facts upon which his claim is based
were unknown to him and could not have been ascertained by the exercise
of due diligence. See 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant also argues
that application of the PCRA time restrictions is unconstitutional as applied to
a petitioner alleging the denial of his constitutional right to a direct appeal
due to the abandonment of counsel. Nevertheless, Appellant failed to raise
these arguments before the PCRA court. See Commonwealth v. Ousley,
21 A.3d 1238 (Pa.Super. 2011), appeal denied, 612 Pa. 698, 30 A.3d 487
(2011) (reiterating issues not raised in PCRA petition cannot be considered
on appeal); Commonwealth v. Wallace, 533 A.2d 1051 (Pa.Super. 1987)
(explaining constitutional issues are waived if not raised and preserved at all
levels of adjudication). Moreover, Appellant failed to advance these specific
arguments in his Rule 1925(b) statement.            See Commonwealth v.
Castillo, 585 Pa. 395, 888 A.2d 775 (2005) (stating general rule that any
issue not included in Rule 1925(b) statement is waived for purposes of
appellate review). Therefore, Appellant failed to preserve these arguments
advanced in his brief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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