J-S48011-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

RICHARD ALAN DELP, SR.

                        Appellant                  No. 1225 WDA 2015


                Appeal from the PCRA Order July 27, 2015
           In the Court of Common Pleas of Armstrong County
           Criminal Division at No(s): CP-03-CR-0000105-1999
                         CP-03-CR-0000106-1999
                         CP-03-CR-0000107-1999
                         CP-03-CR-0000108-1999
                         CP-03-CR-0000712-1998


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                                FILED JUNE 24, 2016

     Richard Alan Delp, Sr., appeals from the order entered July 27, 2015,

dismissing his PCRA petition as untimely. We affirm.

     This Court previously summarized the relevant history.

     In 2001, [Appellant] was convicted of [eight counts of
     involuntary sexual intercourse, four counts of aggravated
     indecent assault, four counts of indecent assault, two counts of
     terroristic threats, three counts of corruption of minors, and two
     counts of rape] and sentenced to 60 to 144 years of
     incarceration. This Court affirmed his judgment of sentence in
     March 2002 and the Pennsylvania Supreme court denied his
     petition for allowance of appeal in January 2004.

     No further action occurred until June 2008, when [Appellant]
     filed a petition pro se with the trial court, in which he argued
     that the trial court erred in imposing his sentence because it
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     failed to merge certain offenses. Motion to Modify and Reduce
     Sentence, 6/19/08. Recognizing that this claim challenges the
     legality of [Appellant’s] sentence, the trial court treated the filing
     as a PCRA petition and issued a Pa.R.Crim.P. 907 notice of intent
     to dismiss based upon its conclusion that the petition was
     untimely. [Appellant] filed a pro se response to the Rule 907
     notice, claiming that his trial counsel failed to communicate with
     him and that he did not discover until May 2008 that his direct
     appeal efforts had concluded. On November 10, 2008, the trial
     court dismissed [Appellant’s] petition. In the memorandum filed
     contemporaneously with the dismissal, the trial court explained
     that [Appellant’s] petition was untimely, that “it is obvious that
     none of the exceptions [to the PCRA's timeliness requirements]
     is even remotely applicable,” and that [Appellant] failed to
     “assert due diligence in discovering the denial of his appeals.”
     Trial Court Opinion, 11/10/08, at 3; Addendum to Memorandum
     and Order, 11/10/08, at 1.

Commonwealth v. Delp, 108 A.3d 117 (Pa.Super. 2014) (unpublished

memoranda at 1-2). We vacated the trial court’s order denying Appellant’s

first petition and remanded the case for the appointment of PCRA counsel

and the filing of a counseled petition. Counsel was appointed, and he filed

an amended petition.

     After conducting a hearing on the matter, the trial court again

dismissed the PCRA petition as untimely on November 27, 2015. This timely

appeal followed. Appellant presents one issue for our consideration.

     I.   Where a Defendant’s Court Appointed trial counsel abandons
          the defendant by way of failing to communicate with the
          defendant after sentencing such that the defendant has no
          knowledge regarding whether any appeals have been filed
          on his behalf or the status of any such appeals, and the lack
          of such knowledge causes the defendant to not know the
          time frame within which he must file a timely PCRA petition,
          did the PCRA court err in denying defendant’s PCRA petition
          as untimely?

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Appellant’s brief at 7.

      We   note   preliminarily   that   an untimely   PCRA petition renders

Pennsylvania courts without jurisdiction to afford relief. Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).        “The question of whether a

petition is timely raises a question of law.     Where the petitioner raises

questions of law, our standard of review is de novo and our scope of review

plenary.” Id. (citations omitted).

      The PCRA specifies that all PCRA petitions must be filed within one

year of the date on which the judgment of sentence became final, unless

one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.

The petitioner bears the burden to plead and prove that a statutory

exception applies. If the petition is found to be untimely, and the petitioner

has not pled and proven an exception, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d

516, 519 (Pa.Super. 2011) (citation omitted).

      Title 42 Pa.C.S. § 9545 (b)(1) and (2) provide:

      (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 of sentence
                   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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the date the
            claim could have been presented.

42 Pa.C.S. § 9545(b)(1) and (2).

      Instantly,   Appellant’s   petition   for   allowance   of   appeal   to   the

Pennsylvania Supreme Court was denied by order on January 22, 2004.

Thus, his judgment of sentence became final on April 22, 2004, following the

expiration of his ninety-day allowance to petition the United States Supreme

Court for review. Appellant had until April 22, 2005 to file a timely PCRA

petition.   However, Appellant filed his PCRA petition on June 19, 2008,

rendering his petition facially untimely unless he pleads and proves one of

the three statutory exceptions detailed above.        Appellant has not raised a

claim of government interference or a newly recognized constitutional right,



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but rather relies solely on the fact that Appellant was not told about the

conclusion of his direct appeal by prior counsel.

       Specifically, Appellant asserts that appellate counsel abandoned him

by failing to communicate with him during the appeal process. Appellant’s

brief at 14. Relying on this Court’s decision in Commonwealth v. Bennett,

930 A.2d 1264 (Pa. 2007), Appellant maintains that attorney abandonment

constitutes a factual basis for the exception outlined in § 9545(b)(1)(ii).

Appellant’s brief at 13. Appellant acknowledges he became aware the status

of his direct appeal through correspondence with the trial court received

March 18, 2008.       Id. at 14.     Pursuant to Pa.C.S. § 9545(b)(2), Appellant

had until May 19, 2008 to invoke this exception to the statutory timebar.1

As he filed his PCRA petition on June 19, 2008,2 he cannot satisfy the

threshold requirement of § 9545(b)(2).

       Thus, the PCRA court properly concluded that the petition was

untimely.

       Order affirmed.


____________________________________________


1
   We observe that since the sixty day time period enumerated in 42 Pa.C.S.
§ 9545(b)(2) following Appellant’s discovery of prior counsel’s actions falls
on Saturday, May 17, 2008, Appellant had until Monday, May 19, 2008 to
file his PCRA petition. See 1 Pa.C.S. § 1908.
2
  Appellant does not assert that the prisoner mailbox rule rendered this
petition timely.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2016




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