J-S18029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID TRAVWICK

                            Appellant                 No. 1728 EDA 2016


                Appeal from the PCRA Order dated May 20, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0109001-2003

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                FILED MAY 31, 2017

        Appellant, David Travwick, appeals pro se from the order dismissing as

untimely his fourth petition for post-conviction relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–46. We affirm.

        The PCRA court summarized the procedural background of this case as

follows:

           On June 15, 2004, following a bench trial before this Court,
        [Appellant] was found guilty of murder of the third degree (F1),
        possessing instruments of crime (PIC) (M-1), and two counts of
        recklessly   endangering    another   person    (REAP)    (M-2).
        Sentencing was deferred until September 15, 2004, at which
        time [Appellant] was sentenced to a term of not less than 15 nor
        more than 40 years in prison. [Appellant] did not file post-
        sentence motions. On September 17, 2004, [Appellant] filed a
        notice of appeal. The Superior Court affirmed [Appellant’s]

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
J-S18029-17


      judgment of sentence on November 28, 2005. [Appellant] did
      not petition for allowance of appeal in our Supreme Court.

PCRA Court Opinion, 7/7/16, at 1 (citation to notes of testimony and

footnotes omitted).

      In the past decade, Appellant has sought relief under the PCRA on

three prior occasions and without success. He filed the pro se PCRA petition

in this appeal – his fourth – on August 13, 2015. On April 6, 2016, the PCRA

court sent Appellant notice of its intent to dismiss the petition as untimely

pursuant to Pennsylvania Rule of Criminal Procedure 907. On May 20, 2016,

the PCRA court dismissed the petition without a hearing. This timely appeal

followed.

      Appellant presents a single issue for our review:

            Is Appellant’s sentencing statute unconstitutional in light of
         the U.S. Supreme Court decision in Welch v. U.S., 136 S.Ct.
         1257; 194 L.Ed.2d 387 (2016) which held Johnson v. U.S.,
         135 S.Ct. 2551 (2015) announced a new substantive rule that
         has retroactive affect in cases on collateral review.

Appellant’s Brief at 5.

      Before we look to the merits of an appellant’s PCRA claims, we must

determine whether his PCRA petition was timely. The timeliness of a post-

conviction petition is jurisdictional. Commonwealth v. Albrecht, 994 A.2d

1091, 1093 (Pa. 2010) (citation omitted). If a petition is untimely, neither

an appellate court nor the PCRA court has jurisdiction over the petition. Id.

“Without jurisdiction, we simply do not have the legal authority to address

the substantive claims” raised in an untimely petition. Id.


                                     -2-
J-S18029-17


      Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, the

applicability of one of the statutory exceptions to the time for filing the

petition.   Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa.

2000); 42 Pa.C.S. § 9545(b)(1).       Under these exceptions, the petitioner

must plead and prove that: “(1) there has been interference by government

officials in the presentation of the claim; or (2) there exists after-discovered

facts or evidence; or (3) a new constitutional right has been recognized.”

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations

omitted). A PCRA petition invoking one of these statutory exceptions must

“be filed within sixty days of the date the claim first could have been

presented.”   Gamboa–Taylor, 753 A.2d at 783.          See also 42 Pa.C.S. §

9545(b)(2).

      Appellant’s judgment of sentence became final on December 28, 2005,

when the thirty-day period for filing a petition for allowance of appeal with

the Pennsylvania Supreme Court expired.        See 42 Pa.C.S. § 9545(b)(3).

Therefore, Appellant had to file his PCRA petition by December 28, 2006 in

order for it to be timely. See Commonwealth v. Travwick, 91 A.3d 1273

(Pa. Super. 2013) (unpublished memorandum at 3). As Appellant filed the

petition before us on August 13, 2015, it is untimely unless he has satisfied

his burden of pleading and proving that one of the enumerated exceptions


                                     -3-
J-S18029-17


applies.    See Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa.

1999).

       Within his brief, Appellant fails to address the PCRA’s time bar. See

generally, Appellant’s Brief at 7-17.1 He does, however, claim that recent

cases involving the constitutionality of sentences, including Welch v.

United States, 136 S.Ct. 1257 (2016), and Johnson v. United States,

135 S.Ct. 2551 (2015), entitle him to relief. Id. at 8-17. This may mean

that Appellant intended to invoke the statutory exception in 42 Pa. C.S.

§ 9545(b)(1)(iii) for newly-recognized constitutional rights, but Appellant

never actually makes that argument.            Appellant fails to discuss or explain

how the cases he cites apply to his judgment of sentence so as to warrant a

finding of a statutory exception to the PCRA’s time bar.2              Accordingly,

Appellant’s PCRA petition is untimely, as he has failed to establish the

applicability of any exception to the statutory deadlines for filing a petition.

____________________________________________
1
   In his PCRA petition, Appellant cited Commonwealth v. Hopkins, 117
A.3d 247 (Pa. 2015), and claimed that his petition was timely because he
filed it after Hopkins held 18 Pa.C.S. § 6317 to be unconstitutional under
Alleyne v. United States, 133 S.Ct. 2151 (2013). Appellant does not
mention Hopkins in his appellate brief.
2
  To the extent Appellant’s cited cases address the unconstitutionality of
mandatory minimum sentences, they do not apply here because Appellant
did not receive such a sentence. See PCRA Court Opinion, 7/7/16, at 5
(“[t]hese cases, however, do not apply to petitioner, as he was not
sentenced    to  any   mandatory     minimum    sentence”);   see     also
Commonwealth’s Brief at 10 (defendant did not receive a mandatory-
minimum sentence).



                                           -4-
J-S18029-17


We thus affirm the PCRA court’s dismissal of Appellant’s fourth PCRA

petition.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2017




                                -5-
