J-S13013-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    FRANCIS TIMOTHY PLAZA

                             Appellant               No. 1794 MDA 2019


              Appeal from the PCRA Order entered October 4, 2019
                  In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0005283-2009


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                             FILED JUNE 16, 2020

        Appellant, Francis Timothy Plaza, appeals pro se from the October 4,

2019 order entered in the Court of Common Pleas of York County, denying as

untimely Appellant’s petition for collateral relief filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review,

we affirm.

        The factual and procedural history of this case, based on our review of

the record and the PCRA court’s October 4, 2019 opinion1, can be summarized

as follows:


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*   Retired Senior Judge assigned to the Superior Court.

1 The PCRA court issued a Rule 1925(a) opinion on December 16, 2019,
incorporating its October 4, 2019 opinion and order in which the court set
forth its reasons for denying of Appellant’s PCRA petition.
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      On July 25, 2009, Appellant shot his wife, Michelle Plaza, six times,

killing her in their bedroom.    He was arrested and charged with criminal

homicide. At trial, he testified he was upset with his wife because she was

constantly on the computer and not spending enough time with him. Prior to

the shooting, the two engaged in a lengthy conversation in their bedroom.

Appellant had earlier taken his gun from his dresser drawer with plans to

secure it before possibly leaving for New York for the weekend. In the course

of their conversation, Michelle announced she was leaving Appellant and he

became enraged. His hand brushed the nearby gun and the next thing he

knew, he was holding the gun in his hand and Michelle was dead, though he

did not remember shooting her.

      A jury convicted Appellant of first-degree murder and, on September

30, 2010, he was sentenced to life in prison. This Court affirmed his judgment

of sentence. On December 3, 2012, our Supreme Court denied allowance of

appeal.

      On October 9, 2013, Appellant timely filed his first PCRA petition.

Counsel was appointed and filed an amended petition.               Following an

evidentiary hearing, the PCRA court denied the petition.        On February 19,

2015, we affirmed. Appellant did not file a petition for allowance of appeal.

Appellant filed pro se motions in August 2015 and July 2016 claiming, inter

alia, that counsel was ineffective for failing to file a petition for allowance of

appeal. The PCRA court denied both motions.


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       On April 10, 2017, counsel filed a motion for leave to file a petition for

allowance of appeal nunc pro tunc. On May 22, 2017, the Supreme Court

denied the petition.

       On June 8, 2017, Appellant filed a pro se PCRA petition alleging PCRA

counsel ineffectiveness for failing to file a petition for allowance of appeal. The

PCRA court denied the petition as untimely on December 18, 2017.

       As the PCRA court explained in its October 4, 2019 opinion, during 2017

and 2018, Appellant filed numerous grievances relating to PCRA counsel’s

“abandonment.” He then filed a motion for a Grazier hearing on November

7, 2018, complaining he was precluded from advocating on his own behalf

because Attorney Dubbs was still noted as attorney of record.             Opinion,

10/4/19, at 4.

       The court conducted a Grazier2 on January 3, 2019 and granted

Appellant’s request, removing Attorney Dubbs as counsel.          On January 15,

2019, Appellant filed a request for appointment of counsel, which the PCRA

court denied on January 25, 2019. Appellant filed an appeal to this Court. On

July 1, 2019, we quashed the appeal as one taken from an interlocutory order.

       Meanwhile, on June 3, 2019, Appellant filed a motion to reinstate appeal

rights nunc pro tunc, followed on July 2, 2019, by a motion for disposition of

his motion to reinstate.       The court treated Appellant’s motion as a PCRA



____________________________________________


2   Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).

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petition and, on August 22, 2019, issued a Rule 907 notice of its intent to

dismiss the petition. On August 30, 2019, Appellant filed a response to the

Rule 907 notice.

      On October 4, 2019, the court issued an order dismissing the motion.

In its accompanying opinion, the court explained that the June 3, 2019 motion

was untimely filed from a judgment of sentence that became final on March

3, 2013 and that Appellant did not plead an exception to the PCRA’s timeliness

requirements. This timely appeal followed. Both Appellant and the PCRA court

complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our consideration:

      [1.] Was Appellant’s constitutional right of appeal denied where
      counsel failed to file timely [petition for allowance of appeal], and
      did the court err in failing to determine counsel’s ineffectiveness
      and abandonment for appeal?

Appellant’s Brief at 3.

      “On appeal from the denial of PCRA relief, our standard of review is

whether the findings of the PCRA court are supported by the record and free

of legal error.”   Commonwealth v. Abu-Jamal, 833 A.2d 719, 723 (Pa.

2003) (citation omitted). Importantly, under the PCRA, any petition “including

a second or subsequent petition, shall be filed within one year of the date the

judgment [of sentence] becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).     A

judgment of sentence becomes 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

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the review.” 42 Pa.C.S.A. § 9545(b)(3). The PCRA’s timeliness requirements

are jurisdictional in nature, and a court may not address the merits of the

issues raised if the PCRA petition was not timely filed. Commonwealth v.

Spotz, 171 A.3d 675, 678 (Pa. 2017).

      On direct appeal, our Supreme Court denied Appellant’s petition for

allowance of appeal on December 3, 2012. He did not seek a writ of certiorari

to the United States Supreme Court. Therefore, his judgment of sentence was

final 90 days later, on March 3, 2013. U.S.Sup.Ct. Rule 13. In accordance

with 42 Pa.C.S.A. § 9545(b), Appellant had until March 3, 2014 to file a PCRA

petition, absent an exception to the PCRA’s one-year time limitation.

      Appellant’s June 3, 2019 petition was filed more than five years after

the deadline for doing so and was, therefore, facially untimely. He did not

plead or prove any exception to the PCRA’s timeliness requirements.

Therefore, the petition was untimely and this Court lack jurisdiction to consider

its merits.

      In his brief, Appellant complains that the PCRA court’s primary reason

for dismissing his petition was untimeliness. He argues, inter alia, that the

court failed to consider our Supreme Court’s decision in Commonwealth v.

Stock, 679 A.2d 760 (Pa. 1996), as well as this Court’s decision in

Commonwealth v. Carter, 21 A.3d 680 (Pa. Super. 2011). First, Stock was

not a PCRA case and is irrelevant to our discussion. Second, Carter involved

a timely-filed PCRA petition seeking reinstatement of Carter’s direct appeal


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rights based on counsel’s failure to consult with Carter about filing an appeal

from Carter’s judgment of sentence. In that case, the PCRA court dismissed

the petition without a hearing.        We remanded for a hearing, finding that,

without a hearing, Carter faced an unsurmountable burden of proving counsel

did not consult with him about an appeal. Carter is clearly inapposite.

      Appellant fails to appreciate that the PCRA’s timeliness requirements are

jurisdictional in nature. His June 3, 2019 petition was clearly untimely and he

neither pled nor proved any exception to the timeliness requirement.

Therefore, neither the PCRA court nor this Court has jurisdiction to consider

the merits, if any, of the petition.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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