J-S60040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

DANNY BURTON

                            Appellant                 No. 1042 EDA 2015


                  Appeal from the PCRA Order March 23, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000788-2007
                            CP-23-CR-0006795-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 09, 2015

        Danny Burton appeals from the order entered on March 23, 2015, in

the Court of Common Pleas of Delaware County, denying him relief on his

petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S. § 9541 et

seq.    After a hearing, the PCRA court determined Burton’s petition was

untimely, and therefore, the court was without jurisdiction to address the

merits of the petition. Following a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm.

        The factual and procedural history of this matter is somewhat

confusing.     On April 3, 2007, Burton pled guilty to a single charge of

corrupting the morals of a minor,1 regarding his improper touching of his
____________________________________________


1
    18 Pa.C.S. § 6301(a)(1)
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girlfriend’s 13 year-old daughter. He was sentenced to five years’ probation.

On November 16, 2009, Burton entered into a plea agreement on charges of

simple assault and terroristic threats,2 based upon a threat to burn down his

girlfriend’s house and for punching his girlfriend’s minor daughter.       He

received an aggregate sentence of 19-38 months’ incarceration for terroristic

threats and an additional two years’ probation for simple assault.         On

December 29, 2009, probation for the initial charge was revoked and Burton

was sentenced to 2 1/2 to 5 years’ incarceration, concurrent to the simple

assault/terroristic threats sentence. The subsequent timing is unclear, but

while still incarcerated on the corruption charge, Burton wrote a series of

seven threatening letters to his girlfriend. On April 3, 2012, the trial court

determined those letters constituted a violation of his probation for simple

assault and sentenced him to one to two years’ incarceration, consecutive to

the sentence Burton was still serving for corrupting the morals of a minor.

No direct appeal was filed. On April 21, 2014, Burton filed this PCRA petition

claiming the trial court erred in determining he had violated a term of his

probation and in failing to give him full credit for time served.

        Initially, we note:

        Our standard of review for an order denying post-conviction
        relief is whether the record supports the PCRA court's
        determination and whether the PCRA court's determination is
        free of legal error. The PCRA court's findings will not be
____________________________________________


2
    18 Pa.C.S. §§ 2701 and 2706, respectively.



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      disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Perzel, 116 A.3d 670, 671 (Pa. Super. 2015) (citation

omitted).

      Before we may address the merits of any PCRA appeal, we must

determine whether the petition was filed in a timely manner. Instantly, the

trial court determined the petition was untimely.

      As a prefatory matter, the timeliness of a PCRA petition is a
      jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d
      477 (Pa. Super. 2011). A PCRA petition, including a second or
      subsequent petition, shall be filed within one year of the date the
      underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
      A judgment is deemed 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.” 42 Pa.C.S.A. §
      9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the
      PCRA allow for very limited circumstances under which the late
      filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To
      invoke an exception, a petition must allege and the petitioner
      must prove:

         (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



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         provided in this section and has been held by that court to
         apply retroactively.

      42 Pa.C.S.A § 9545(b)(1)(i)-(iii). Additionally, a PCRA petitioner
      must present his claimed exception within sixty days of the date
      the claim first could have been presented. 42 Pa.C.S.A. §
      9545(b)(2). “As such, when a PCRA petition is not filed within
      one year of the expiration of direct review, or not eligible for one
      of the three limited exceptions, or entitled to one of the
      exceptions, but not filed within 60 days of the date that the
      claim could have been first brought, the [PCRA] court has no
      power to address the substantive merits of a petitioner's PCRA
      claims.” Commonwealth v. Gamboa-Taylor, 562 Pa. 70, 77,
      753 A.2d 780, 783 (2000).

Commonwealth v. Brown, 111 A.3d 171, 175-76 (Pa. Super. 2015).

      There is no dispute that Burton was sentenced on April 3, 2012, for

the probation violation and no direct appeal was filed.         Accordingly, his

judgment of sentence became final on May 3, 2012, when the 30-day time

limit to file a direct appeal expired.      Therefore, in order to meet the

statutorily mandated one-year time limit, pursuant to Section 9545(b)(1),

Burton was required to file his PCRA petition by May 3, 2013.          However,

there is no dispute, and the record clearly demonstrates, that the instant

petition was not filed until April 21, 2014 – almost one year past the time

limit. Moreover, Burton has not pled, much less proven, he is entitled to any

of the three statutory exceptions to the one-year time limit.

      Because the petition was filed almost one year too late and Burton is

not entitled to any of the timeliness exceptions, the certified record supports

the trial court’s determination that the petition is untimely. Further, the trial




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court’s resulting legal conclusion that no jurisdiction exists to address the

merits of the petition is free from error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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