J-S34042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CHARLES J. ODENWALT                  :
                                      :
                   Appellant          :   No. 270 WDA 2019

          Appeal from the PCRA Order Entered January 3, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000490-2015

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CHARLES JAMES ODENWALT               :
                                      :
                   Appellant          :   No. 271 WDA 2019

          Appeal from the PCRA Order Entered January 3, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000724-2015

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CHARLES J. ODENWALT                  :
                                      :
                   Appellant          :   No. 272 WDA 2019

          Appeal from the PCRA Order Entered January 3, 2019
  In the Court of Common Pleas of Crawford County Criminal Division at
                    No(s): CP-20-CR-0000821-2014
J-S34042-19


    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    CHARLES JAMES ODENWALT                       :
                                                 :
                       Appellant                 :   No. 273 WDA 2019

             Appeal from the PCRA Order Entered January 3, 2019
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0000906-2014

BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                   FILED JULY 31, 2020

        Appellant, Charles J. Odenwalt, appeals from the orders entered January

3, 2019, that dismissed his first petitions filed under the Post Conviction Relief

Act (PCRA)1 without a hearing. We affirm.2

        The facts underlying this appeal are as follows. On February 23, 2015,

Appellant plead guilty to knowing and intentional possession of a controlled


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541–9546.
2 Appellant filed four notices of appeal, each contained four docket numbers
and each notice of appeal has a different time stamp. This appeal does not
present an issue pertaining to Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). See Commonwealth v. Johnson, 2020 PA Super 164, *5 (filed July
9, 2020) (overruling Commonwealth v. Creese, 216 A.3d 1142, 1144 (Pa.
Super. 2019) to the extent that Creese stated “a notice of appeal may contain
only one docket number.”) Appellant filed four notices of appeal evidenced by
the different time stamped on each. This does not run afoul of Walker.




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substance at CP-20-CR-00000821-2014 (No. 821-2014) and possession with

intent to deliver (PWID) at CP-20-CR-0000906-2014 (No. 906-2014).3             On

September 2, 2015, Appellant was sentenced to four to twelve months’

incarceration on No. 821-2014, and twelve months less one day to twenty-

four months less one day of incarceration on No. 906-2014. The sentence of

No. 906-2014 was to run concurrent to No. 821-2014. On October 15, 2015,

Appellant plead guilty to two counts of PWID at CP-20-CR-0000490-2015 (No.

490-2015) and one count of PWID at CP-20-CR-0000724-2015 (No. 724-

2015). On November 2, 2015, Appellant received an aggregate sentence of

four to ten years’ incarceration on No. 490-2015 and a sentence of two to five

years’ incarceration on No. 724-2015, concurrent to No. 490-2015. Appellant

filed a timely post sentence motion at Nos. 490-2015 and 724-2015, which

were denied on November 17, 2015. Appellant did not file a direct appeal

from any of the judgments of sentence listed above.

        On April 20, 2018, Appellant filed his first pro se PCRA petitions at each

docket number. Appellant filed identical petitions for each docket number.

Appellant alleged ineffective assistance of counsel for failing to calculate

Appellant’s prior record score (PRS) correctly, failing to challenge the incorrect

PRS, and for failing to file a motion to suppress. On April 24, 2018, the PCRA

court appointed counsel and permitted counsel to file an amended PCRA. On


____________________________________________


3   35 P.S. § 780-113 (a)(16), (30), respectively.


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June 26, 2018, counsel filed an amended PCRA at each docket number

contending:

     While the Petition appears to be beyond the time allowed for Post-
     Conviction Relief, Petitioner nonetheless requests that this
     Honorable Court consider the request for relief for the following
     reasons:

     i)       Petitioner requests relief based upon Constitutional due
              process claims, both federal and state;

     ii)      Petitioner has a limited understanding of procedure and
              claims due to certain intellectual limitation and disabilities,
              and was not properly counseled, either at the time he could
              seek a direct appeal or seek post-sentence relief, that his
              rights would be lost by failure to preserve a claim or to meet
              applicable deadlines;

     iii)     Petitioner asserts that the claims herein are based upon
              Constitutional rights not knowingly waived, and therefore
              not waivable;

     iv)      To the extent of the Court’s discretion under such
              circumstances, Petitioner requests that this Honorable Court
              grant the relief requested nunc pro tunc, at the Court’s
              discretion, as the relief is fair and reasonable and would
              address or correct a manifest injustice.

Amended Petition for Post-Conviction Collateral Relief, 6/26/2018, at 3

(unpaginated).

     On December 11, 2018, the PCRA court issued a memorandum and

order pursuant to Pa.R.Crim.P. 907(1) (Rule 907 Notice) as to each docket

number. The Rule 907 Notice stated the PCRA court’s intention to dismiss the

PCRA petitions without a hearing, because (1) Appellant’s parole was

terminated on Nos. 821-2014 and 906-2014, and (2) the PCRA petitions were

untimely filed and did not plead any exception to the timeliness requirement.

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On December 31, 2018, counsel filed a response to the Rule 907 Notice,

claiming that the court must hold an evidentiary hearing before dismissing the

petitions. On January 3, 2019, the PCRA court issued an order dismissing the

PCRA petition at each docket number. On January 31, 2018, Appellant filed

this timely appeal.4

       Appellant presents the following issue for our review:

       Did the lower court/PCRA court err by dismissing Appellant’s PCRA
       action as untimely and therefore not within the jurisdiction of the
       court, without proceeding by the requirements of Rule 908,
       denying Appellant’s due process rights?

Appellant’s Brief at 8.

       “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 209 A.3d 992, 996 (Pa. Super. 2019) (quoting

Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

       At the outset, we note that Appellant’s parole was terminated on No.

821-2014 on August 31, 2016, and at No. 906-2014 on August 10, 2017.

Appellant concedes that “[Nos.] 821-2014 and 906-2014 are terminated

dockets.    Appellant’s argument is entirely focused upon [Nos.] []490-2015

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4  On February 1, 2019, the PCRA court issued its order pursuant to Pa.R.A.P.
1925(b). On February 21, 2019, Appellant filed his 1925(b) statement of
errors complained of on appeal. On February 26, 2019, the PCRA court filed
a letter directing our Court to its December 11, 2018 memorandum in lieu of
filing a new 1925(a) opinion.




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and 724-2015.” Appellant’s Brief at 9. Appellant is not currently imprisoned,

on probation, or on parole on No. 821-2014 and No. 906-2014; thus, Appellant

is not eligible for relief under the PCRA.5 We affirm the PCRA orders dismissing

Appellant’s PCRA petitions at Nos. 821-2014 and 906-2014.

       For Appellant’s remaining actions, Appellant concedes that the petitions

were untimely filed.      The time limitations of the PCRA are jurisdictional in

nature and, as such, a court cannot address the merits of an untimely petition.

See Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003).

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

of sentence is final, unless the petition alleges and the petitioner proves one

of the three exceptions to the time limitations for filing the petition set forth

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5Eligibility for relief under the PCRA is governed by 42 Pa.C.S. § 9543, which
provides in pertinent part:

       To be eligible for relief under this subchapter, the petitioner must
       plead and prove by a preponderance of the evidence all of the
       following:

              (1) That the petitioner has been convicted of a crime
              under the laws of this Commonwealth and is at the
              time relief is granted:

                 (i)  currently  serving   a   sentence     of
              imprisonment, probation or parole for the crime;

42 Pa.C.S. § 9543(a) (emphasis added); see also Commonwealth v.
Ahlborn, 699 A.2d 718, 720 (Pa. 1997).



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in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).6 Appellant

has not pleaded an exception to the timeliness requirement of the PCRA.

Consequently, the PCRA court was without jurisdiction to review the merits of

Appellant’s claim and properly dismissed his petition. We find the PCRA court

properly dismissed Appellant’s petition without holding a hearing because

Appellant did not plead facts that would establish an exception to the PCRA’s

timeliness requirements. See Commonwealth v. Miller, 102 A.3d 988 (Pa.

Super. 2014) (affirming dismissal of PCRA petition without a hearing because

Miller failed to meet his burden of proving any exception to the PCRA’s time

bar).    As Appellant’s PCRA petitions at Nos. 490-2015 and 724-2015 are

untimely, we affirm the PCRA court’s orders dismissing those PCRA petitions.

        Orders affirmed.



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6   The three exceptions to the timeliness requirement 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. § 9545(b)(1)(i)-(iii).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2020




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