J-S63017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRANDON RAY BURGWIN

                            Appellant               No. 1850 WDA 2016


            Appeal from the PCRA Order Dated November 22, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012505-2007

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 29, 2017

        Pro se Appellant Brandon Ray Burgwin appeals from the order

dismissing his fourth Post Conviction Relief Act (“PCRA”)1 petition as

untimely. We affirm.

        We need not discuss the facts underlying Appellant’s conviction.

Suffice to say, Appellant “was found guilty in a jury trial of criminal attempt

[to commit] homicide [and] aggravated assault and carrying a firearm

without a license. On October 6, 2008, [Appellant] was sentenced to 20 to

40 years on the charge of attempt to commit murder, and 5 to 10 years

consecutive for carrying a firearm without a license.”    Commonwealth v.

Burgwin, No. 447 WDA 2012, 2013 WL 11259314, at *1 (Pa. Super.,

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1
    42 Pa.C.S. §§ 9541-9546.
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July 1, 2013) (brackets omitted) (affirming denial of Appellant’s first PCRA

petition), appeal denied, 83 A.3d 413 (Pa. 2014). Appellant appealed to

this Court, which reversed the conviction for carrying a firearm without a

license and affirmed the remaining convictions.             Commonwealth v.

Burgwin, No. 465 WDA 2009, at 8 (Pa. Super., May 11, 2010). Appellant

did not file a direct appeal.           Appellant filed a first PCRA petition on

November 24, 2010, the PCRA court denied relief, and this Court affirmed on

July 1, 2013. Appellant filed two more PCRA petitions, each of which was

dismissed as untimely. Order 5/18/15; Order, 3/17/14.

       The court docketed the instant PCRA petition on August 25, 2016. The

petition did not plead any timeliness exceptions to the PCRA’s one-year

timebar. See 42 Pa.C.S. § 9545(b). On October 26, 2016, the court issued

a Pa.R.Crim.P. 907 notice, which stated:

       The petitioner’s fourth Post Conviction Relief Act Petition, dated
       August 25, 2016, is DENIED. The petitioner is notified that the
       Court intends to DISMISS his Post Conviction Relief Act Petition
       within twenty (20) days of the date of this Order. Petitioner's
       fourth PCRA Petition is untimely, and furthermore Petitioner has
       failed to make a prima facie showing that a miscarriage of justice
       may have occurred.

Order, 10/26/16.2       Appellant filed a response in opposition, which did not

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2
  Rule 907 states that: “the judge shall give notice to the parties of the
intention to dismiss the petition and shall state in the notice the reasons for
the dismissal,” the defendant has 20 days to respond, and “[t]he judge
thereafter shall order the petition dismissed” or grant other relief.
Pa.R.Crim.P. 907(1) (emphases added). Under this rule, the court should
not deny the petition in the same document that provides notice of an intent
(Footnote Continued Next Page)

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make a claim that his petition was timely, other than to claim that labeling

his petition as untimely is “cruel and unusual punishment.”       Response to

Notice of Intent to Dismiss, 11/8/16, at 1.       The court denied Appellant’s

petition on November 22, 2016.

      Appellant appealed and raises the following issues, which we repeat

verbatim:

      Whether prior PCRA counsel was ineffective for failing to raise a
      proceeding in a tribunal without jurisdiction after the record
      indicated trial counsel timely objected to the 180 day rule
      violation pursuant to Rule 600 occurred on two occasions,
      continue since 1st rule non waiver PCRA counsel failed to
      develop any argument or cite to relevant authorities, which in
      the circumstances of the particular case, so undermined the
      truth-determining process that no reliable adjudication of guilt or
      innocence could have taken place.

      Whether the honorable court erred in dismissing Appellant
      Burgwin’s PCRA by failing to let . . . Appellant exhaust his
      administrative remedies when court did not rule on Appellant’s
      [trial] counsel timely objection to the 180 day rule violation
      pursuant to Pa.R.Crim.[P.] 600.

Appellant’s Brief at 5. Appellant also filed an application for relief with this

Court, in which Appellant requests our assistance and asks us to rule on the

merits of the issues raised in his brief.

      The PCRA court held that Appellant’s petition is untimely, and we

agree. We therefore do not reach Appellant’s substantive issues.

                       _______________________
(Footnote Continued)
to dismiss the petition. Here, however, we note that the PCRA court entered
the dispositive order denying Appellant’s petition on November 22, 2016,
after Appellant filed his timely response to the Rule 907 notice.



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     The timeliness of a post-conviction petition is jurisdictional, and if a

petition is untimely, neither an appellate court nor the PCRA court has

jurisdiction to consider it. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010). To be timely,

     [a]ll PCRA petitions must be filed within one year of the date a
     judgment of sentence becomes final unless the petitioner pleads
     and proves that (1) there has been interference by government
     officials in the presentation of the claim; or (2) there exists
     after-discovered facts or evidence; or (3) a new constitutional
     right has been recognized.

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal

denied, 944 A.2d 756 (Pa. 2008). It is the petitioner’s burden to allege and

prove that one of the timeliness exceptions applies; whether this burden has

been carried is a “threshold inquiry that must be resolved prior to

considering the merits of any claim.”   Commonwealth v. Robinson, 139

A.3d 178, 186 (Pa. 2016) (citation omitted).

     Appellant’s fourth PCRA petition is untimely. Appellant's judgment of

sentence became final on June 10, 2010 — thirty days after this Court

affirmed. Therefore, Appellant had until June 10, 2011, to file a timely PCRA

petition. The court docketed Appellant’s fourth PCRA petition on August 25,

2016, well beyond that deadline.

     To overcome the one-year time-bar, Appellant was required to plead

and prove one of the PCRA’s three timeliness exceptions. See Robinson,

139 A.3d at 186.    Appellant never invokes any of the exceptions in his

petition or in his brief. Because Appellant failed to plead and prove any one

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of the three timeliness exceptions to the PCRA’s one year time-bar, we

affirm the order below.

     Application for relief denied. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




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