J-S36019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMAR JONES,

                        Appellant                   No. 3598 EDA 2016


             Appeal from the PCRA Order of October 31, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0014691-2007


BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 12, 2017

      Appellant, Jamar Jones, appeals pro se from the order entered on

October 31, 2016, dismissing as untimely his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the facts and procedural history of this

case as follows:

        […Appellant] entered a negotiated guilty plea to the charges
        of third-degree murder, criminal conspiracy, robbery and
        possession of an instrument of crime, generally on
        December 19, 2012. On December 27, 2012 [the trial
        court] imposed an aggregate sentence of thirty to sixty
        years’ incarceration upon him. [Appellant] did not file either
        a post-sentence motion or a notice of appeal.

        On March 6, 2014, [Appellant] filed a pro se petition
        pursuant to the PCRA wherein he claimed that trial counsel
        was ineffective for failing to file post-sentence motions and
        a requested direct appeal. Following [Appellant’s] filing of
        his pro se PCRA petition, Todd Mosser, Esquire was
        appointed to represent him. On September 26, 2016, Mr.
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          Mosser filed a “[n]o [m]erit” letter pursuant to
          Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
          1988) [(en banc)]; Commonwealth v. Turner, 544 A.2d
          927 (Pa. 1988), and a [m]otion to [w]ithdraw as [c]ounsel.
          Upon reviewing the letter and the entire record, [the PCRA
          court] sent [Appellant] a Pa.R.Crim.P. 907 [n]otice of
          [i]ntent to [d]ismiss. [Appellant] did not file a response and
          on October 31, 2016, [the PCRA court] issued an order
          dismissing [Appellant’s] PCRA petition without a hearing and
          granting counsel’s motion to withdraw.              Subsequent
          thereto, [Appellant] filed a timely notice of appeal.

PCRA Court Opinion, 11/17/2016, at 1-2.

      On appeal, Appellant presents the following issues, pro se, for our

review:

          1. Whether the PCRA court erred when the court denied
             Appellant an appeal, nunc pro tunc, whereas PCRA
             counsel provided deficient performance for failing to
             investigate [Appellant’s] claim that trial counsel failed to
             honor [Appellant’s] request to file a requested appeal via
             numerous letters []?

          2. Whether the PCRA court erred when the court
             determined that an evidentiary hearing will not be
             granted to determine if trial counsel abandoned
             [Appellant’s] right to [a] direct appeal after [Appellant]
             plead [sic] guilty; whereas counsel’s failure to file an
             appeal constituted ineffective assistance of counsel?

Appellant’s Brief at 3 (complete capitalization omitted).

      Appellant contends that he “sent numerous letters to defense counsel

requesting that counsel file an appeal on his behalf[;] instead, counsel

abandoned [him] during the appellate phase of the proce[e]ding.”            Id. at

5.   He avers that he had “a right to appeal his sentence, even though he

plead [sic] guilty, and the failure to file an appeal constituted ineffective

assistance of counsel.”    Id. at 6. Appellant further claims the PCRA court

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erred by failing to hold “an evidentiary hearing to determine if in fact

defense counsel had a reasonable basis for failing to file a direct appeal on

behalf of” Appellant. Id. at 5.

      Our standard of review is well-settled:

        [A]n appellate court reviews the PCRA court's findings of
        fact to determine whether they are supported by the record,
        and reviews its conclusions of law to determine whether
        they are free from legal error. The scope of review is
        limited to the findings of the PCRA court and the evidence of
        record, viewed in the light most favorable to the prevailing
        party at the trial level.

Commonwealth v. Freeland, 106 A.3d 768, 775 (Pa. Super. 2014)

(citation omitted).

      Further, we review the PCRA court's dismissal of a PCRA petition

without a hearing for an abuse of discretion:

        [T]he right to an evidentiary hearing on a post-conviction
        petition is not absolute. It is within the PCRA court's
        discretion to decline to hold a hearing if the petitioner's
        claim is patently frivolous and has no support either in the
        record or other evidence. It is the responsibility of the
        reviewing court on appeal to examine each issue raised in
        the PCRA petition in light of the record certified before it in
        order to determine if the PCRA court erred in its
        determination that there were no genuine issues of material
        fact in controversy and in denying relief without conducting
        an evidentiary hearing.

                           *         *           *

        Before we may address the merits of Appellant's arguments,
        we must first consider the timeliness of Appellant's PCRA
        petition because it implicates the jurisdiction of this Court
        and the PCRA court.



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           Pennsylvania law makes clear that when a PCRA petition is
           untimely, neither this Court nor the trial court has
           jurisdiction over the petition. The 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 if the PCRA permits it to be extended[.] This is to
           accord finality to the collateral review process. However, an
           untimely petition may be received when the petition alleges,
           and the petitioner proves, that any of the three limited
           exceptions to the time for filing the petition, set forth at 42
           Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)

(citations and quotation marks omitted).        “Any petition under [the PCRA]

shall be filed within one year of the date the judgment becomes final[.]” 42

Pa.C.S.A. § 9545(b)(1).

      In this case, the trial court imposed Appellant’s judgment of sentence

on December 27, 2012. Because no direct appeal was filed, his judgment of

sentence became final “when the time for seeking direct review expire[d].”

42 Pa.C.S.A. § 9545(b)(3). A litigant has 30 days to file a notice of appeal

from a final order, unless the appeal period falls on a weekend or legal

holiday.     See Pa.R.A.P. 903(a); 1 Pa.C.S.A. § 1908.          Thus, Appellant’s

judgment of sentence became final on Monday, January 28, 2013. Because

Appellant filed his pro se PCRA petition on March 6, 2014, it is patently

untimely.

      Appellant does not plead or prove any of the three exceptions to the

PCRA’s jurisdictional timing requirement. Moreover, our Supreme Court has

consistently stated, “that couching post-conviction issues in terms of

ineffectiveness cannot ‘save’ an untimely filed PCRA petition that does not


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fall into any of the exceptions to the PCRA's jurisdictional time bar.”

Commonwealth v. Robinson, 139 A.3d 178, 182 (Pa. 2016) (citation

omitted).   Accordingly, we are without jurisdiction to address Appellant’s

ineffective assistance of counsel claims and an evidentiary hearing was

unwarranted.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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