J-S19003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SHAWN HAYNES                             :
                                          :
                   Appellant              :   No. 3141 EDA 2017
                                          :

              Appeal from the PCRA Order September 5, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0008924-2009


BEFORE:    SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY SHOGAN, J.:                                FILED MAY 07, 2018

      Appellant, Shawn Haynes, appeals from the order denying his second

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541–9546. We affirm.

      While incarcerated on other charges, Appellant was involved in an

assault of a prison guard on August 17, 2007.        N.T., 11/29/10, at 7–13.

Appellant was charged on May 1, 2009, in connection with the assault. Id. at

14. On January 7, 2013, Appellant pled guilty to two counts of aggravated

assault, 18 Pa.C.S. § 2702, and one count each of possessing an instrument

of crime (“PIC”), 18 Pa.C.S. § 907, and conspiracy, 18 Pa.C.S. § 903.         In

exchange for the plea, the court sentenced him to consecutive terms of

imprisonment of ten to twenty years for aggravated assault, aggregated to

twenty to forty years, to be served concurrently “to any and all other
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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sentences which are now being served.” N.T. (Sentencing), 1/7/13, at 17–

18.   The court did not impose further penalty for the PIC or conspiracy

charges. Id. at 18. The court nol prossed all other charges.1 Appellant did

not file an appeal.

       Appellant filed a pro se PCRA petition on August 26, 2015.2 Counsel

was appointed, who filed a no-merit letter pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc), on March 5, 2017. The PCRA court issued

a notice of intent to dismiss the petition without a hearing on April 6, 2017,

and an amended notice on May 18, 2017. Appellant filed a response on June

2, 2017, to which he attached numerous documents.          See Note 2, supra

(describing documents). On June 27, 2017, the PCRA court dismissed the


____________________________________________


1  The following charges were nol prossed: two counts each of assault by a
prisoner, riot-intent to commit a felony, terroristic threats with intent to
terrorize another, simple assault, reckless endangerment, and one count of
conspiracy. Order, 1/7/13.

2  Appellant allegedly wrote a letter to his plea counsel in October of 2013,
that was returned because Appellant utilized an incorrect address. The letter
inquired about the appeal in Appellant’s prior rape conviction in Philadelphia
County from 2008, committed while he was a suspect in a prior Delaware
County rape, to which he pled guilty in 2005. See Commonwealth v.
Haynes, 23 A.3d 1081, 1788 EDA 2009 (Pa. Super. 2011) (unpublished
memorandum), petition for allowance of appeal denied, 23 A.3d 540 (Pa.
2011). The letter allegedly also indicated Appellant’s dissatisfaction with the
sentence imposed in the instant case and intimated Appellant’s desire to
withdraw his guilty plea. Appellant’s pro se response to PCRA court’s
Pa.R.Crim.P. 907 notice (Attachment), 6/2/17. A second letter dated January
8, 2014, did reach plea counsel, who responded to Appellant by letter dated
February 6, 2014. Id.

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PCRA petition, noting it “carefully reviewed the entire record and determined

[Appellant] had not timely filed his pro se PCRA petition,” and permitted PCRA

counsel to withdraw. PCRA Court Opinion, 10/3/17, at 1; Order, 6/27/17.

      The PCRA court summarized the ensuing procedural history as follows:

             On July 10, 2017, petitioner filed his second PCRA petition.1
      Upon carefully reviewing the petition, this [c]ourt determined that
      this second petition had been untimely filed so on July 31, 2017,
      this [c]ourt sent [Appellant] a Pa.R.Crim.P. 907 Notice of Intent
      to Dismiss. Although [Appellant] did not file a formal response to
      the notice, on August 9, 2017, [Appellant] filed an amended PCRA
      petition. Upon reviewing [Appellant’s] filings, this [c]ourt, on
      September 5, 2017, issued an order dismissing [Appellant’s]
      second PCRA petition on timeliness grounds.              [Appellant]
      thereafter timely filed a notice of appeal.

            1   [Appellant] alleged in his petition that he was
            entitled to relief in the form of an order permitting him
            to file a notice of appeal nunc pro tunc from the order
            imposing judgment of sentence.

PCRA Court Opinion, 10/3/17, at 2. The PCRA court did not order Appellant

to comply with Pa.R.A.P. 1925.

      Appellant has filed a pro se brief that is noncompliant with numerous

rules of appellate procedure, not the least of which is the failure to include the

Statement of Questions Involved pursuant to Pa.R.A.P. 2116.             Rule 2116

states, “No question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116 (a). Our

review of Appellant’s brief suggests that he is asserting plea counsel’s




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ineffectiveness for failing to file a “requested” direct appeal.3 Appellant’s Brief

at 3.

        Initially, however, we must determine whether the PCRA court had

jurisdiction to review the merits of Appellant’s issue based on the timing of

Appellant’s petition.     The timeliness of a PCRA petition is a jurisdictional

threshold that may not be disregarded in order to reach the merits of the

claims raised in a PCRA petition that is untimely.               Commonwealth v.

Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citing Commonwealth v. Murray,

753 A.2d 201, 203 (Pa. 2000)).                 As noted, the trial court imposed the

judgment of sentence on January 7, 2013.               Appellant did not file a direct

appeal.    Thus, his judgment of sentence became final thirty days later on

February 6, 2013. See 42 Pa.C.S. § 9545(b)(3) (stating that, for purposes of

calculating the timeliness of a petition, 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”). Therefore, Appellant had until

February 6, 2014, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1)

(A PCRA petition, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final. . . .”). Appellant filed


____________________________________________


3   The record does not support such a claim. At the earliest, Appellant
attempted to contact counsel in October of 2013, eight months after the
relevant direct-appeal period and nine months after the imposition of
sentence.

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his PCRA petition on July 10, 2017, over four years after his judgment of

sentence became final. Hence, the petition is facially untimely.

       The jurisdictional time bar can be overcome only by satisfaction of one

of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).4

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny

petition invoking an exception . . . shall be filed within 60 days of the date the

claim could have been presented.”              42 Pa.C.S. § 9545(b)(2).   The PCRA

petitioner bears the burden of proving the applicability of one of the

exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).

       Appellant failed to prove any exception to the PCRA’s timeliness

requirement.5     The instant PCRA petition was untimely, and no exceptions

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4   The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).
5 While Appellant asserted a violation of the United States Constitution in his
PCRA petition, PCRA Petition, 6/27/17, at ¶ 9, he neither mentioned nor



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apply. Therefore, the PCRA court lacked jurisdiction to address the claims

presented. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.

2002) (holding that PCRA court lacks jurisdiction to hear untimely petition).

Likewise, we lack the authority to address the merits of any substantive claim

raised in the PCRA petition.        See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right or

competency to adjudicate a controversy.”).

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/18




____________________________________________


explained this claim, and instead focused upon plea counsel’s alleged
ineffectiveness. A claim of ineffective assistance of counsel, however, does
not save an otherwise untimely petition for review on the merits.
Commonwealth v. Perrin, 947 A.2d 1284, 1287 (Pa. Super. 2008).

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