J-S64011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAWRENCE J. MADISON                        :
                                               :
                       Appellant               :   No. 160 WDA 2019

             Appeal from the PCRA Order Entered January 2, 2019
    In the Court of Common Pleas of Washington County Criminal Division at
                       No(s): CP-63-CR-0000495-2016


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.:                            FILED DECEMBER 12, 2019

        Lawrence Madison appeals from the January 2, 2019 order dismissing

his petition for relief pursuant to the Pennsylvania Post-Conviction Relief Act

(“PCRA”). We affirm.

        The instant case began on January 27, 2016, in Peters Township,

Washington County, Pennsylvania. On that date, Appellant was pulled over

while driving by an officer of the Peters Township Police Department based

upon his failure to stop at a red light. As the traffic stop progressed, Appellant

consented to various searches and was ultimately found to be in possession

of a large number of items that were determined to be stolen property

appropriated from cars and homes in the surrounding area including jewelry,

clothing, credit cards, loose change, a wireless speaker, and a holstered

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*   Retired Senior Judge assigned to the Superior Court.
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handgun. See Affidavit of Probable Cause, 1/27/16, at 1; see also N.T. Guilty

Plea Colloquy and Sentencing, 12/16/16, at 2 (Appellant stipulating to the

contents of the aforecited affidavit).

      On December 16, 2016, Appellant pled guilty to person not to possess

a firearm, receiving stolen property, and firearms not to be carried without a

license. See N.T. Guilty Plea Colloquy and Sentencing, 12/16/16, at 4-5. He

was immediately sentenced to an aggregate term of five to ten years of

imprisonment.    Id. at 6-7.    Although Appellant might have qualified for

acceptance into the Washington County Veterans’ Court, the Commonwealth

would not offer him a plea that would permit his participation therein. See

Memorandum and Order, 4/28/17, at 3. Rather, Appellant was accepted into

the Allegheny County Veterans’ Court and would be eligible to participate once

he was paroled from the aforementioned sentence. See N.T. Guilty Plea

Colloquy and Sentencing, 12/16/16, at 4.

      No timely post-sentence motion or direct appeal was taken. The PCRA

court appointed counsel to represent Appellant, who ultimately filed a no-merit

brief and a motion to withdraw pursuant to Commonwealth v. Turner, 544

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa.Super. 1988) (en banc). In pertinent part, PCRA counsel averred that

Appellant’s petition was untimely and that no exceptions to the PCRA’s

timeliness requirements were applicable. On December 5, 2018, the PCRA

court granted counsel’s petition and provided Appellant with notice of its intent

to dismiss Appellant’s PCRA petition on jurisdictional grounds without a

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hearing.     Appellant swiftly filed a pro se response styled “Petitioner’s

Memorandum and Proffer in Response to Rule 907,” wherein Appellant argued

that the PCRA timeliness provisions at 42 Pa.C.S. § 9545(b)(1) are

unconstitutional and that his appellate rights under the PCRA should be

reinstated, nunc pro tunc.           See Petitioner’s Memorandum and Proffer,

12/31/18, at 3-6. That same day, the PCRA court filed a memorandum and

order denying Appellant’s request for reinstatement.

       On January 2, 2019, the PCRA court dismissed Appellant’s petition

without a hearing. Appellant filed a timely notice of appeal.1

       Our standard and scope of review in this context is well-articulated

under existing Pennsylvania precedent: “On appeal from the denial of PCRA

relief, our standard and scope of review is limited to determining whether the

PCRA court’s findings are supported by the record and without legal error.”

Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013). We must view

the evidence of record in the light most favorable to the prevailing party at

the PCRA court level. See Commonwealth v. Koehler, 36 A.3d 121, 131
____________________________________________


1  The PCRA court directed Appellant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and advised Appellant
that “[a]ny issue not properly included in the statement timely filed and
served, shall be deemed waived.”          Order, 1/30/19, at unnumbered 1.
Appellant failed to comply. Thus, no Rule 1925(a) opinion from the trial court
was filed of record. Ordinarily, this oversight on Appellant’s part would result
in waiver of all his claims. However, the PCRA court’s order was not docketed
in accordance with Pa.R.Crim.P. 114(C)(2)(c).           This renders the order
unenforceable for the purposes of waiver. See Commonwealth v. Chester,
163 A.3d 470, 472 (Pa.Super. 2017) (holding order to file Rule 1925(b)
statement was unenforceable where there was no indication on the docket of
the date of service of the order requiring its filing).

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(Pa. 2012). However, we apply a de novo standard of review with specific

regard to the PCRA court’s legal conclusions. Commonwealth v. Spotz, 18

A.3d 244, 259 (Pa. 2011).

      In light of the PCRA court’s holding, we must assess whether Appellant’s

petition is timely or subject to one of the exceptions to the timeliness

requirements under the PCRA. See Commonwealth v. Walters, 135 A.3d

589, 591-92 (Pa.Super. 2016) (“[T]he PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not address

the merits of the issues raised in a petition if it is not timely filed.”).   In

pertinent part, the PCRA provides as following regarding timeliness:

      (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
         Sates;

         (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.

      ....

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       (3) For purposes of this subchapter, 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. § 9545(b).         In reviewing these statutory provisions, it is also

important to note that “there is no generalized equitable exception to the

jurisdictional one-year time bar pertaining to post-conviction petitions.”

Commonwealth v. Brown, 943 A.2d 264, 267 (Pa. 2008).

       Instantly, Appellant concedes that his PCRA petition was untimely,2 but

argues that this Court should overlook the timeliness requirements of the

PCRA and permit his appeal to proceed, nunc pro tunc, on equitable grounds.

See Appellant’s brief at 1-2. Thus, Appellant has not asserted that any of the

timeliness exceptions set forth at § 9545(b)(1)(i)-(iii) are applicable to his

case in either his original PCRA petition, or in his appeal before this Court. As

such, Appellant has failed to raise or prove the applicability of any operative

exceptions to timeliness, and his attempt to secure equitable reinstatement of


____________________________________________


2 Pa.R.A.P. 903(a) contemplates a thirty-day window within which to appeal.
Instantly, this thirty-day period from the trial court’s April 28, 2017
memorandum and order denying Appellant’s petition to withdraw his guilty
plea began to run on May 6, 2017, or the day after its entry upon the record.
See Pa.R.Crim.P. 108. Therefore, the final day for Appellant to file an appeal
was June 5, 2017. See Pa.R.Crim.P. 720; see also Pa.R.A.P. 107, 903; 1
Pa.C.S. § 1908. No appeal was ultimately filed, and Appellant’s sentence
became final that same day. See 42 Pa.C.S. § 9545(b)(3). Thereafter, the
one-year time limit set forth at 42 Pa.C.S. § 9545(b) began to accrue.
Appellant’s PCRA petition was not filed until September 13, 2018, which
renders it untimely by approximately three months.

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his PCRA rights is unavailing. See Brown, supra at 267. Thus, his PCRA

petition is untimely and the PCRA court was without jurisdiction to entertain

his claims.   See Commonwealth v. Blackwell, 936 A.2d 497, 500

(Pa.Super. 2007) (“[F]ailure to allege a timeliness exception in the PCRA

petition itself precludes the petitioner from raising it on appeal.”); see also

Commonwealth v. Liebensperger, 904 A.2d 40, 46 (Pa.Super. 2006)

(“These exceptions must be specifically pleaded or they may not be

invoked.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2019




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