J-S48041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CHRISTOPHER DARNELL YOUNG, SR.

                         Appellant                   No. 423 WDA 2015


              Appeal from the PCRA Order of February 24, 2015
              In the Court of Common Pleas of Cambria County
              Criminal Division at No.: CP-11-CR-0000789-2001


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 11, 2015

      Christopher Darnell Young, Sr., appeals the February 24, 2015 order

dismissing his petition for relief filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

      Following a two and a half day jury trial and a day and a half of
      deliberations that occurred from March 28, 2002 through April 2,
      2002, Young was convicted of one count of criminal conspiracy,
      and two counts each of delivery of a controlled substance, and
      possession of a controlled substance1. The charges against
      Young resulted from two controlled buys conducted on April 25
      and 26, 2000, by the Cambria Country Drug Task Force (Task
      Force) using a confidential informant, Charles Wested (Wested).
      Young was sentenced on May 30, 2002, to an aggregate
      sentence of six (6) to [twenty] years[’] incarceration in a state
      correctional institution, to pay fines totaling thirty thousand
      dollars ($30,000), to pay restitution of seven hundred and
      twenty five dollars ($725), and to pay the costs of prosecution.
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          1
            18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30), and 35
          P.S. § 780-113(a)(16)[,] respectively.

       Following his sentence[,] Young directed his trial attorney, John
       Kasaback, Esq. (Kasaback), to file an appeal. Kasaback filed a
       timely Notice of Appeal but failed to comply with the trial court’s
       order to file a Concise Statement of [Errors] Complained of on
       Appeal (Concise Statement) pursuant to Pennsylvania Rule of
       Appellate Procedure 1925(b). The Superior Court dismissed
       Young’s appeal for failure to comply with the Rules of Appellate
       Procedure. Commonwealth v. Young, 1639 WDA 2002 (Pa.
       Super. 2002). Young then filed a [motion to reinstate his direct
       appellate rights] with [the trial court] due to Kasaback’s failure
       to perfect the first appeal. Young’s Motion was granted and
       Maureen McQuillan, Esq. was appointed to serve as counsel on
       Young’s appeal.

       McQuillan filed a timely Notice of Appeal and [Concise
       Statement] raising seven (7) issues. In his appeal brief[,] Young
       reduced the number of issues to three (3) and the Superior
       Court denied the appeal and affirmed his sentence on April 7,
       2004. Commonwealth v. Young, 616 WDA 2003 (Pa. Super.
       2004).     Young did not file for allocatur with our Supreme
       Court . . . .

       On April 30, 2004, Young filed a Petition for Post-conviction
       Relief and a hearing on the Petition was held on October 22,
       [2004.] On December 15, 2004, the Petition was denied for
       failure to file a brief and produce evidence in support of his
       Petition. By order dated January 18, 2005, [the PCRA court]
       vacated the December 15 Order and granted Young an additional
       twenty (20) days to file his brief. On July 25, 2005, the [PCRA
       court] filed an Opinion and Order denying the Petition and no
       appeal was taken. The [instant] pro se Second Petition for Post-
       Conviction Relief was filed on February 20, 2015 and denied on
       February 24, 2015.[1]


____________________________________________


1
      There is no notation in the record to suggest that there was a hearing
on Young’s petition or that the PCRA court sent Young notice of its intention
to dismiss his PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907.
However, Young has not raised the failure to file a Rule 907 notice, and
(Footnote Continued Next Page)


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      Young filed a timely Notice of Appeal on March 9, 2015 . . . .

PCRA Court Opinion (“P.C.O.”), 5/5/2015, at 1-2.

      The PCRA court did not order, and Young did not file, a concise

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

On May 5, 2015, the PCRA court filed a Rule 1925(a) opinion.

      Before we can reach the issues Young raises, we must determine

whether any court has jurisdiction to entertain them.

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. The question of whether a petition is
      timely raises a question of law. Where the petitioner raises
      questions of law, our standard of review is de novo and our
      scope of review plenary. An untimely petition renders this Court
      without jurisdiction to afford relief.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations

omitted).

      The timeliness of a PCRA petition is controlled by statute, which states,

in pertinent 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
                       _______________________
(Footnote Continued)

therefore, that issue is waived. Commonwealth v. Taylor, 65 A.3d 462,
468 (Pa. Super. 2013).



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J-S48041-15


         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.

      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have
      been presented.

      (3) For purposes of this subchapter, 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.

42 Pa.C.S.A. § 9545.

      Young’s judgment of sentence became final on or about May 7, 2004

when the time expired for him to seek review of his direct appeal by our

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, Young had until

approximately May 7, 2005 to file a timely PCRA petition. See 42 Pa.C.S.A.

§ 9545(b)(1).   The instant PCRA petition was filed on February 20, 2015,

almost ten years after the judgment of sentence became final; the petition

facially was untimely.

      However, we will review a facially untimely petition if the petitioner

has pled and proven that one of the exceptions applies. The petitioner bears




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J-S48041-15



the burden of proving that an exception applies.                Commonwealth v.

Garcia, 23 A.3d 1059, 1062 (Pa. Super. 2011).

       Young pled that the newly recognized, and retroactively applied,

constitutional    right   exception,     42    Pa.C.S.A.   § 9545(b)(1)(iii)   applied.

However, Young did not specify what new constitutional right was created

and nothing in his brief relates to a new constitutional right.          Although he

has pled an exception, Young has not proven that it provides relief to the

jurisdictional time bar.

       However, Young asserts actual innocence, which he claims is non-

waivable and equitably tolls the timeliness requirements.2             PCRA Petition,

2/20/2015, at 3. Our Supreme Court has held that:

       [T]he period for filing a PCRA petition is not subject to the
       doctrine of equitable tolling; instead, the time for filing a PCRA
       petition can be extended only to the extent that the PCRA
       permits it to be extended, i.e., by operation of one of the
       statutorily enumerated exceptions to the PCRA time-bar.

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004) (citation and

quotation marks omitted).           Because Young has not proven one of the


____________________________________________


2
       Young cites federal case law interpreting the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) for the principle that equitable tolling
is available. However, federal decision do not control our interpretation of
the PCRA. See Commonwealth v. Fahy, 737 A.2d 214, 221 (Pa. 1999)
(stating “decisions of our federal brethren are not binding on this court”
especially when the federal court “was not interpreting the PCRA, but was
addressing a federal statute”).



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exceptions and equitable tolling is unavailable, Young’s PCRA petition was

untimely, and the PCRA court lacked jurisdiction to consider its merits.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




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