J-S24022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID EUGENE FERRARA

                            Appellant                 No. 1094 WDA 2016


                   Appeal from the PCRA Order June 20, 2016
               In the Court of Common Pleas of Jefferson County
    Criminal Division at Nos: CP-33-CR-0000493-1999, CP-33-CR-0000570-
          2000, CP-33-CR-0000278-2002, CP-33-CR-0000279-2002


BEFORE: PANELLA, STABILE, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                               FILED JUNE 8, 2017

        Appellant, David Eugene Ferrara, appeals from the June 20, 2016

order entered in the Court of Common Pleas of Jefferson County (“PCRA

court”), denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we

affirm.

        A panel of this Court previously addressed the history of the matter as

follows.

              This case arises from incidents that occurred over ten
        years ago. While Appellant initially pled nolo contendere in 2002
        to three counts of incest and guilty to one count of indecent
        assault, he petitioned to withdraw his plea, but the court denied
        his petition. This Court reversed his judgment of sentence and
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        in 2004, after the reinstatement of the charges against him,
        Appellant again entered the same plea.          He subsequently
        pursued a direct appeal with this Court and we affirmed his
        judgment of sentence. In 2007, Appellant filed his first PCRA,
        which the court dismissed. On appeal, this Court affirmed the
        dismissal. Appellant then filed a second PCRA petition, which the
        court also dismissed. Although Appellant filed a Notice of Appeal
        on January 25, 2010, he filed an “Application to Dismiss,” which
        this Court granted, thereby discontinuing his appeal.

Commonwealth           v.    Ferrara,     No.    1268   WDA   2010,   unpublished

memorandum, at 2 (Pa. Super. filed April 13, 2011). Appellant filed a third

PCRA petition, stylized as a petition for writ of habeas corpus on June 11,

2010.    The PCRA court dismissed the petition as untimely, and this Court

affirmed. Id. at 5.

        On May 16, 2016, Appellant filed the instant PCRA petition. On May

18, 2016, the PCRA court issued a notice of intention to dismiss the PCRA

petition as untimely.       Appellant petitioned for leave to file a supplemental

PCRA on May 27, 2016, and an objection to the dismissal of the PCRA

petition on June 13, 2016.           On June 20, 2016, the PCRA court denied

Appellant’s petition for leave to amend and dismissed the PCRA petition.

        Appellant filed a notice of appeal on July 21, 2016. On September 9,

2016, Appellant filed a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). The PCRA court issued a 1925(a) opinion on

September 12, 2016.1
____________________________________________


1
  This opinion was titled “Order Dismissing PCRA Petition;” however, the
PCRA court issued an order on October 4, 2016, correcting the title of the
document.



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     Appellant raises nine issues on appeal, which we repeat verbatim.

     I.     Whether the denial of the PCRA Petition was Lawful?

     II.    Whether the [PCRA court] was required as a matter of
            Legislative Statute, 42 PA.C.S.A. §9760(2)(3); 1 PA.C.S.A.
            § 1921, mandated to credit time already served to, Pro Se’
            Appallant, before fashioning a new negotiated Nolo
            Contendere Pleas, April 12, 2004?

     III.    Whether the [PCRA court] answered any averments and
            well formulated pleadings, pursuant to Fed.R.Civil.P.
            8(a)(e), stated in Post Conviction Relief Act, Nunc Pro
            Tunc, filed May 11, 2016, and “objections Dismissing PCRA
            Petition” filed June 7, 2016, impeding justice and
            obstructing justice, to a innocent man, David E. Ferrara
            (Appellant)?

     IV.    Whether the PCRA Petition was timely filed, challenging the
            illegal sentence of probation, pursuant to 42 PA.C.S.A. §
            9541, that disregarded Legislative Statute, 42 PA.C.S.A. §
            9754(a); 1 PA.C.S.A. § 1921(a-c)(1-8) that was excessive
            and unlawful?

     V.     Whether [the PCRA court], did “Obstruct Process” and
            “Obstructing Justice” to Pro Se’ Appellant, by conveniently
            taking the back door, to presumptively state (without any
            facts of the record) that was quote: (26) Page (Petition)
            when actually it was a “Post Collateral Relief Act” Petition,
            and stated: …was “Nothing but a reiteration of allegations
            that both Courts, [PCRA court] and Superior Court,
            Western District; have rejected in the past (some of them
            multiple time) and our supreme Court has declined to
            consider?

     VI.    Whether [the PCRA court], had statutory authorization to,
            sentence Appellant to a double jeopardy sentence, that
            violated the “Double Jeopardy Clause” of United States
            Constitution? Id. Us. Const. 14 Amend; Article I, sec. 10 of
            Pennsylvania Constitution.

     VII.   Whether [the PCRA court], had statutory authorization,
            ordering probation, totaling twenty-seven (27) years on
            April 12, 2004, exceeding the maximum term for which


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            [Appellant] could be confined, when it didn’t explain how
            that life time probation, pursuant to 42 PA.R.Crim.P.
            704(c)(2); would contributes to the rehabilitation of the
            Appellant; pursuant to, 42 PA.C.S.A. § 9754(a); 1
            PA.C.S.A. § 1921(a-c)(1-8); 42 PA.C.S.A. § 9781(a); 42
            PA.C.S.A. § 9541; Article I, §10, Pennsylvania
            Constitution; 42 PA.C.S.A. § 9721?

      VIII. Whether counsel, Robert Taylor, Esq., was rendering his
            services as advocate Attorney, on April 12, 2004, by not
            objecting to Double Jeopardy Sentence of probation of
            twenty-seven (27) years, total, and omitted procedural
            protection of the Meagan’s Law II, pursuant to, 42
            PA.C.S.A. § 9795.4(e)(2); 1 PA.C.S.A. § 1921(a-c)(1-8)?

      IX.   Did the [PCRA court], provide Pro Se’ Appellant, procedural
            protection of the Meagan’s Law II, pursuant to, 42
            PA.C.S.A. § 9795.4(e)(2); 1 PA.C.S.A. § 1921(a-c)(1-8)
            September 11, 2002 and April 12, 2004, before Meagan’s
            Law II hearing; which Appellant didn’t receive a fair
            hearing?

Appellant’s Brief at 5-7 (sic).

      It is well established that “an appellate court reviews the PCRA court’s

findings of fact to determine whether they are supported by the record, and

reviews its conclusions of law to determine whether they are free from legal

error.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (quoting

Commonwealth v. Colavita, 993 A.2d 874, 887 (Pa. 2010)). Moreover, all

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

within one year of the date the judgment becomes final” unless an exception

to timeliness applies.    42 Pa.C.S.A. § 9545(b)(1).   Such “restrictions are

jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this

Court nor the [PCRA] court has jurisdiction over the petition.        Without

jurisdiction, we simply do not have the legal authority to address the

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substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (first alteration in original) (internal citations and quotation marks

omitted).

      There are three exceptions to the timeliness requirement of the PCRA.

These exceptions 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.A. § 9545(b)(1)(i-iii).

      Appellant briefly mentions the timeliness requirement in his brief;

however, Appellant’s argument is misplaced.           Appellant asserts the

government interference exception applies because the sentence imposed by

the trial court exceeded the statutory maximum. See Appellant’s Brief at 13.

This argument fails as Appellant is attempting to couch a legality of sentence

claim as an automatic exception to the timeliness requirement of the PCRA.

             As long as this Court has jurisdiction over a matter, a
      legality of sentencing issue is reviewable and cannot be waived.
      Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super.
      2007). However, a legality of sentencing issue must be raised in
      a timely filed PCRA Petition. See 42 Pa.C.S.A. § 9545(b)(2);

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      Commonwealth v. Fahy, 558 Pa. 313, 330, 737 A.2d 214, 223
      (1999) (holding that “[a]lthough a legality of sentence is always
      subject to review within the PCRA, claims must still first satisfy
      the PCRA’s time limits of one of the exceptions thereto”).

Commonwealth v. Whitehawk, 146 A.3d 266, 270 (Pa. Super. 2016).

Appellant’s petition is patently untimely and he has failed to establish that a

timeliness exception applies.   Thus, we conclude the PCRA court properly

dismissed Appellant’s petition as untimely.

      Order affirmed. Application for correction/clarification denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2017




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