J-S40045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ROBERT STEVEN THOMPSON, JR.                :
                                               :
                      Appellant                :   No. 354 EDA 2017

            Appeal from the Judgment of Sentence October 29, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003334-2014


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                     FILED JUNE 21, 2017

        Robert Steven Thompson, Jr.,1 appeals, nunc pro tunc, from the

judgment of sentence imposed on October 29, 2015, in the Court of

Common Pleas of Delaware County following his conviction on charges of

disorderly conduct, harassment and possession of marijuana. 2         Thompson

received an aggregate sentence of 90 days’ incarceration and 32 hours of

community service. In this appeal, Thompson claims the trial court erred in

denying his motion to suppress evidence regarding possession of marijuana

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
 The certified record reflects that Thompson is also known as Minister Wali
Akbar El.
2
  18 Pa.C.S. §§ 5503(a)(1), 2709(a)(1), and 35 P.S. § 780-113(a)(31),
respectively.
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and that there was insufficient evidence to support his convictions of

harassment      and    disorderly    conduct.    After   thorough   review   of   the

submissions by the parties, the certified record, and relevant law, we are

required to quash this appeal because the PCRA court lacked the jurisdiction

to grant nunc pro tunc relief.

       On January 17, 2017, the PCRA court granted Thompson nunc pro

tunc permission to file his direct appeal.3 This relief was granted pursuant to

a petition filed on December 8, 2016, pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. § 9541 et seq.

       The jurisdiction requirements for the PCRA are set forth at 42 Pa.C.S.

§ 9545, and state, in relevant part:

       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;
____________________________________________


3
  On the same day, Thompson was sentenced to seven days’ incarceration
following a Gagnon II hearing. The imposition of sentence pursuant to a
violation of parole or probation has no effect on the date a defendant’s
judgment of sentence becomes final. See Commonwealth v. Anderson,
788 A.2d 1019 (Pa. Super. 2001). The delay in holding the Gagnon hearing
was apparently due to Thompson absconding before completing any of his
required community service.



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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. § 9545(b)(1)(i)-(iii).

       This time restriction is strictly enforced.

       The PCRA requires that a petition seeking relief thereunder must
       be filed within one year of the date the petitioner's judgment of
       sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1);
       Commonwealth v. Jones, 617 Pa. 587, 54 A.3d 14, 16 (2012).
       “[A] judgment 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 the review.” 42 Pa.C.S.A. § 9545.
       This timeliness requirement is jurisdictional in nature, and a
       court may not address the merits of any claim raised unless the
       petition was timely filed or the petitioner proves that one of the
       three exceptions to the timeliness requirement applies.

Commonwealth v. Cox, 146 A.3d 221, 227 (Pa. 2016).

       As noted above, judgment of sentence in this matter was entered on

October 29, 2015.         Thompson did not file a direct appeal.        Therefore,

judgment of sentence became final on November 30, 2015, when the thirty

days allowed to file his direct appeal expired.4 See 42 Pa.C.S. § 9545(b)(3)

(“For purposes of this subchapter, a judgment becomes final at the

____________________________________________


4
 November 28, 2015, was a Saturday. Therefore, Monday, November 30,
2015, is when his direct appeal rights expired.




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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.”) The PCRA clearly requires that

any PCRA petition, including a second or subsequent petition, be filed within

one year of the date a petitioner’s judgment of sentence became final.

Accordingly, Thompson was required to file his PCRA petition on or before

November 30, 2016.5 However, the certified record reflects that Thompson

did not file his PCRA petition, seeking nunc pro tunc relief, until December 8,

2016, one week past the one year deadline.             Thompson claimed no

entitlement to any of the three exceptions to the one-year requirement. In

light of the fact that Thompson’s PCRA petition was untimely, the PCRA court

had no jurisdiction to grant Thompson nunc pro tunc relief. Not only does

the lack of jurisdiction render the PCRA court’s order null and void, it, in

turn, renders Thompson’s appeal void. “Where a court is without jurisdiction

it is without power to act and thus, any order that it issues is null and void.”

Commonwealth v. Morris, 771 A.2d 721, 735 (Pa. 2001).

       Appeal quashed.




____________________________________________


5
  This grants Thompson 366 days from the date his judgment of sentence
became final, as 2016 was a leap year. See Commonwealth v. Fenati,
748 A.2d 205 (Pa. 2000).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2017




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