J-S72004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL HINKEL,

                            Appellant                 No. 1744 WDA 2013


           Appeal from the PCRA Order Entered September 26, 2013
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010187-2005


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED DECEMBER 2, 2014

        Appellant, Michael Hinkel, appeals from the September 26, 2013 order

denying his petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On March 26, 2007, Appellant entered a negotiated guilty plea to one

count of criminal homicide.           Pursuant to that plea agreement, he was

sentenced the same day to a term of twenty to forty years’ incarceration.

        No direct appeal was taken from the judgment of sentence.            On

February 13, 2008, Appellant filed a pro se PCRA petition.       Appellant was

appointed counsel. An amended PCRA petition was filed on July 1, 2008. A

hearing was scheduled; however, on October 1, 2008, Appellant, through

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*
    Retired Senior Judge assigned to the Superior Court.
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counsel, filed a motion to withdraw the PCRA petition.     The motion was

granted, and Appellant’s PCRA petition withdrawn, on October 6, 2008.

      Appellant filed the instant pro se PCRA petition on September 11,

2012. Counsel was appointed and subsequently filed a motion to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 479 A.2d 568 (Pa. Super. 1984).           The court

granted counsel’s motion to withdraw on February 26, 2013. On June 11,

2013, the court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss.

The court dismissed Appellant’s petition on September 26, 2013. Appellant

filed a timely notice of appeal, as well as a timely concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      We note that Appellant includes a statement of questions involved in

his pro se brief.       However, these questions are extremely lengthy,

encompassing several pages. Therefore, we decline to include them in their

entirety in this memorandum because, as we will explain infra, this Court

lacks jurisdiction to address Appellant’s claims.

      Before we may address Appellant’s claims, we must assess the

timeliness of his petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.   Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded to address the merits of the petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

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(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).

      Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b) applies. That section states, in relevant part:

      (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 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)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant was sentenced on March 26, 2007, and did not file a

direct appeal from that sentence.    Thus, Appellant’s judgment of sentence



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became final 30 days after his sentencing, or on April 25, 2007.     See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Pa.R.A.P. 903(a) (providing 30 days for the filing of a notice of

appeal after entry of the order from which the appeal is taken).

Consequently, Appellant had until April 25, 2008, to file a timely PCRA

petition.   He did not file the instant petition until September 11, 2012.

Therefore, Appellant was required to plead and prove in his PCRA petition

that one of the above-stated exceptions applied to his claim(s).

      Initially, we note that “[i]n PCRA proceedings, an appellate court's

scope of review is limited by the PCRA's parameters; since most PCRA

appeals involve mixed questions of fact and law, the standard of review is

whether the PCRA court’s findings are supported by the record and free of

legal error.” Commonwealth v. Pitts, 981 A.2d 875, 878 (Pa. 2009).

      Appellant now alleges, inter alia, that the PCRA court erred in

dismissing his petition as untimely as he was mentally incompetent when he

filed, and withdrew, his initial timely PCRA petition.     The Pennsylvania

Supreme Court has held that “mental incompetence at the relevant times, if

proven, may satisfy the requirements of Section 9545(b)(1)(ii), in which

case, the claims defaulted by operation of that incompetence may be

entertained.”   Commonwealth v. Cruz, 852 A.2d 287, 287 (Pa. 2004)

(emphasis in original).   In the instant petition, however, Appellant did not

plead this exception to the PCRA time bar.      Rather, he alleged that his

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petition was timely filed pursuant to the exception outlined in section

9545(b)(1)(iii), as it was filed within 60 days of the United States Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).1

       It is well-established that “[i]ssues not raised in the lower court are

waived and cannot be addressed on appeal.” Pa.R.A.P. 302(a). See also

Commonwealth           v.   Washington,        927   A.2d   506,   601   (Pa.   2007)

(recognizing that claims raised on appeal of collateral review are waived

unless properly preserved). Thus, we may not address this exception to the

time bar, which Appellant now attempts to raise for the first time on appeal.

       Briefly, we note that Appellant attempts to characterize this PCRA

petition as an amendment to his first, timely filed PCRA petition of February

13, 2008.      Appellant filed a motion to withdraw that PCRA petition on

October 1, 2008, and the court granted that motion on October 6, 2008.2

Appellant relies on the holding of the Pennsylvania Supreme Court in
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1
  The Miller Court held that the imposition of mandatory life sentences
without the possibility of parole for those under the age of 18 at the time of
their crime constitutes a violation of the Eighth Amendment. Appellant was
not a juvenile at the time his crime was committed, nor was he subject to a
mandatory life sentence. Consequently, he did not prove the applicability of
this exception to the PCRA time bar.
2
  In his brief, Appellant maintains that his PCRA petition was withdrawn due
to mental health issues that would have prevented him from participating in
the PCRA hearing scheduled by the court. We note that there is nothing in
the record indicating Appellant sought to postpone his PCRA proceedings.
Moreover, neither Appellant’s motion to withdraw, nor the PCRA court’s
order granting that motion, indicate that the Appellant moved to discontinue
his PCRA proceedings for that reason.



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Commonwealth v. Flanagan, 854 A.2d 489, 499 (Pa. 2004), in which the

Court recognized that “PCRA courts are invested with discretion to permit

the   amendment     of   a   pending,   timely-filed   post-conviction   petition.”

However, as noted supra, Appellant’s initial PCRA petition was not pending

at the time he filed the instant petition, as that petition had been withdrawn

at his request in 2008.      Consequently, there was no existing petition to

amend, and we would conclude the court did not err in treating the instant

petition as an untimely serial PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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