J-S13010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RONNY WESTERFIELD,

                        Appellant                  No. 1719 WDA 2014


         Appeal from the PCRA Order Entered December 13, 2012
             In the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001990-2007


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MARCH 03, 2015

     Appellant, Ronny Westerfield, appeals pro se from the post-conviction

court’s December 13, 2012 order denying as untimely his second petition for

relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

     In May of 2008, a jury convicted Appellant of involuntary deviate

sexual intercourse with a child and related charges. On November 4, 2008,

he was sentenced to an aggregate term of 16 to 32 years’ incarceration. He

filed a timely appeal with this Court.   After we affirmed his judgment of

sentence, our Supreme Court denied his subsequent petition for allowance of

appeal on February 24, 2010. Commonwealth v. Westerfield, 981 A.2d

325 (Pa. Super. 2009) (unpublished memorandum), appeal denied, 989

A.2d 917 (Pa. 2010).      Appellant did not seek further review with the
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Supreme Court of the United States and, thus, his judgment of sentence

became final on May 26, 2010. See 42 Pa.C.S. § 9545(b)(3) (stating that a

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

expiration of the time for seeking the review); Commonwealth v. Owens,

718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the PCRA,

petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court).

     Appellant filed a timely pro se PCRA petition on September 20, 2010,

and counsel was appointed.    On May 17, 2011, the PCRA court dismissed

Appellant’s petition without a hearing.    He filed a timely notice of appeal,

and on March 9, 2012, we affirmed the order denying Appellant PCRA relief.

Commonwealth v. Westerfield,          47    A.3d 1240    (Pa. Super. 2012)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court.

     On November 7, 2012, Appellant filed his second pro se PCRA petition,

which underlies the present appeal. Therein, he alleged the following three

claims:

     I. A violation of [p]rocedural [d]ue [p]rocess [r]esulting in an
     [i]llegal [s]entence was a miscarriage of [j]ustice;

     II. The [p]ublic [d]efender’s [o]ffice [c]omitted [f]raud on the
     [c]ourt [r]esulting in a [m]iscarriage of [j]ustice;




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       III. The [c]ourt [l]acked [s]ubject [m]atter [j]urisdiction
       [b]ecause [] [Appellant] was never [g]iven [f]ormal [n]otice of
       the [c]harges[.]

PCRA Petition, 11/7/12, at 3.

       On November 27, 2012, the PCRA court issued Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition without a hearing, reasoning that

the petition is untimely. Appellant filed a timely pro se response, contending

that the procedural history set forth in the “Memorandum” accompanying his

PCRA petition “shows, in full detail, the timeliness of the petition as well as

[his] assertion that it was timely filed.” Appellant’s Response to Rule 907

Notice, 12/14/12, at 2 (unnumbered).             On December 13, 2012, the PCRA

court issued an order dismissing Appellant’s petition.1         Appellant filed a

timely notice of appeal.

       On January 10, 2013, the PCRA court issued an order directing

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal within 21 days.           Appellant filed a Rule 1925(b) statement,

which was time-stamped by the Clerk of Courts of Fayette County as being

received on February 8, 2013.             While Appellant handwrote the date of
____________________________________________


1
  We note that while the PCRA court’s Rule 907 notice properly stated that
Appellant had 20 days to respond, the court erroneously filed its order
dismissing Appellant’s petition after only 16 days. Indeed, the court issued
the order dismissing Appellant’s petition before Appellant filed his timely, pro
se response to the Rule 907 notice, thus evincing that the court did not
consider that filing. While we acknowledge this error by the PCRA court,
Appellant does not raise any challenge thereto on appeal.             Thus, we
conclude that any claim involving this error is waived.                     See
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).



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January 24, 2013, on that document, he did not include “any reasonably

verifiable evidence” of the date that he deposited his Rule 1925(b)

statement with the prison authorities or placed it in a prison mailbox. 2 See

Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super. 1998) (stating

that under the ‘prisoner mailbox rule,’ pro se documents will “be deemed

filed on the date that the prisoner deposits the appeal with prison

authorities, or places it in a prison mailbox[,]" provided that the inmate

presents “reasonably verifiable evidence” of the date on which he did so)

(citing Jones, 700 A.2d at 426).           Therefore, we are constrained to deem

Appellant’s Rule 1925(b) statement as untimely, and consider all of his

issues waived.      See Commonwealth v. Myers, 86 A.3d 286, 289 (Pa.

Super. 2014) (stating “it is clear that, whatever else we may do, we may not

consider the merits of an appeal when the Rule 1925 statement was

untimely filed”) (citing Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.

2005)).




____________________________________________


2
  In Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997), our Supreme
Court indicated that “the type of evidence a pro se prisoner may present to
prove that he mailed the [document] within the deadline” can include “a
Postal Form 3817, Certificate of Mailing[,]” or a “Cash Slip” from “prison
authorities … noting both the deduction from [the inmate’s] account for the
mailing to the prothonotary and the date of the mailing….” The Jones Court
also stated that “an affidavit attesting to the date of deposit with the prison
officials likewise could be considered.” Id. Appellant did not attach any
such documents to his Rule 1925(b) statement in the present case.



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      Nevertheless, for the reasons that follow, even if Appellant had not

waived his issues, we would agree with the PCRA court that his petition is

untimely and, thus, we do not have jurisdiction to review the merits of his

claims. Initially, we note that 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).                  The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      As both this Court and our Supreme Court have stated, the PCRA’s

time limitations implicate the appellate court’s 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);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002).

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 exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies. That section states, 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:


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           (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 May 26, 2010,

and thus, he had until May 26, 2011, to file a timely petition. Consequently,

Appellant’s petition filed on November 7, 2012, is patently untimely and, for

this Court to have jurisdiction to review the merits thereof, he must prove

that he meets one of the exceptions to the timeliness requirements set forth

in 42 Pa.C.S. § 9545(b).

     Appellant has failed to do so. The majority of his brief is devoted to

arguing that he suffered a ‘miscarriage of justice’ warranting PCRA relief,

and/or that he presented ‘issues of material fact’ necessitating a PCRA

hearing. However, Appellant fails to recognize that neither the PCRA court,

nor this Court, have jurisdiction to assess whether his claim(s) demonstrate

a miscarriage of justice, or present questions of material fact, unless he


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proves that his untimely petition satisfies an exception set forth in section

9545(b)(1)(i)-(iii). Appellant makes no attempt to allege the applicability of

any of those exceptions. Instead, he argues that in calculating the one-year

time-frame within which he had to file a timely petition, we are required to

exclude the time during which his first PCRA petition was pending. In other

words, Appellant claims that we should not count the time from September

20, 2010 (the date he filed his first PCRA petition), through April 8, 2012

(the date the judgment dismissing that petition became final) in assessing

whether Appellant filed his current petition within one year of the date on

which his judgment of sentence became final.

      Initially, our review of Appellant’s pro se PCRA petition, as well as the

“Memorandum” accompanying it, reveals that Appellant did not raise this

claim before the PCRA court. Therefore, it is waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”); Commonwealth v. Rainey, 928 A.2d 215, 226

(Pa. 2007) (holding that claims not raised in the PCRA petition are waived).

In any event, we would conclude that Appellant’s argument is meritless,

even had he preserved it for our review. The plain language of section 9545

states that “[a]ny petition under this subchapter, including a second or

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

becomes final….” 42 Pa.C.S. § 9545(b)(1). We have always interpreted this

language as requiring that any PCRA petition be filed within one year of the

date on which the petitioner’s judgment of sentence became final.           In

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calculating the timeliness of second or subsequent petitions, neither this

Court, nor our Supreme Court, have ever excluded the time during which the

petitioner’s first PCRA petition was pending. Accordingly, even had Appellant

preserved this argument below, we would reject that his PCRA petition is

timely under this novel theory.

      In sum, because Appellant filed an untimely Rule 1925(b) statement,

he did not preserve any of his claims for our review. Moreover, Appellant

has failed to plead and prove the applicability of any exception to the PCRA’s

timeliness requirement. Therefore, even had Appellant timely filed his Rule

1925(b) statement, we would conclude that the PCRA court did not err in

denying his untimely petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2015




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