J-S40038-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                Appellee                :
                                        :
           v.                           :
                                        :
MICHAEL LEE RICHTER,                    :
                                        :
                Appellant               : Nos. 299, 302, 303 WDA 2015

           Appeal from the PCRA Order Entered October 23, 2013
              in the Court of Common Pleas of Fayette County
            Criminal Division at Nos.: CP-26-CR-0000466-2010,
               CP-26-CR-0000467-2010, CP-26-0000549-2010

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 12, 2015

      Michael Lee Richter (Appellant) appeals from the order entered

October 23, 2013, denying his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.      Upon review, we quash the

appeal.

      On September 10, 2010, a jury convicted Appellant of two counts of

theft by unlawful taking, three counts of receiving stolen property, and three

counts of criminal conspiracy to commit theft by unlawful taking. On

September 21, 2010, the trial court sentenced Appellant to serve an

aggregate term of four and one-half to nine years of imprisonment.

Appellant timely filed a direct appeal to this Court, which affirmed

Appellant’s judgment of sentence on December 20, 2011. Commonwealth

v. Richter, 40 A.3d 198-99 (Pa. Super. 2011) (unpublished memorandum).


* Retired Senior Judge assigned to the Superior Court.
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Appellant did not seek allowance of appeal with our Supreme Court.

        On October 31, 2012, Appellant timely filed his first pro se PCRA

petition.     The PCRA court appointed Dianne Zerega, Esquire to represent

Appellant.     Attorney Zerega subsequently filed an amended PCRA petition,

which, following a hearing, was denied by the PCRA court on October 23,

2013.    Appellant did not file a notice of appeal to this Court within thirty

days of the entry of that order.

        On July 21, 2014, Appellant filed a second pro se PCRA petition. New

counsel—James Natale, Esquire—was then appointed by the PCRA court.

Appellant, through Attorney Natale, filed an amended PCRA petition,

essentially alleging that his previous PCRA counsel, Attorney Zerega, was

per se ineffective.     Specifically, the amended petition states: “Attorney

Zerega failed to notify [Appellant] that his first PCRA Petition had been

denied within the thirty (30) day period for an appeal, and as a result

[Appellant] did not have an opportunity to appeal the Court’s [October 23,

2013] decision.”       Amended PCRA Petition, 11/24/2014, at 2 (pages

unnumbered).       Appellant requested that he be permitted to appeal the

October 23, 2013 order.

        On February 9, 2015, following a hearing on the second PCRA petition,

the PCRA court granted Appellant leave nunc pro tunc to appeal the October

23, 2013 order. On February 20, 2015, Appellant filed a notice of appeal to

this Court.



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      On appeal, Appellant presents the         following questions for our

consideration:

      1. Whether the PCRA court erred by not finding trial counsel
         Jeremy Davis, Esq., ineffective for failing to object to the
         admission of a co-defendant’s, Courtney Beth Kuhn’s,
         statement when said co-defendant was not called as a
         witness at trial?

      2. Whether the PCRA court erred by not finding that the
         prosecutor, Michelle L. Kelley, Esq., committed prosecutorial
         misconduct when she intentionally introduced evidence as to
         the content of the co-defendant’s, Courtney Beth Kuhn’s,
         statement and elicited information from … [Trooper]
         Marchewka knowing that the co-defendant would not testify
         at trial?

      3. Whether the PCRA court erred by not finding trial counsel
         Jeremy Davis, Esq., ineffective for failing to file a motion to
         suppress the introduction of the shoe prints?

      4. Whether the trial court erred by not finding trial counsel,
         Jeremy Davis, Esq., ineffective for failing to inspect the
         evidence regarding the pictures of the shoe prints and his
         shoes, within sufficient time to form a defense?

Appellant’s Brief at 3.

      Before we address Appellant’s issues, we must first determine whether

the PCRA court had jurisdiction to entertain the merits of Appellant’s second

PCRA petition.    The PCRA court denied Appellant’s first PCRA petition on

October 23, 2013.         In order to appeal that order in a timely fashion,

Appellant had to file a notice of appeal within 30 days of the entry of the

order. Pa.R.A.P. 903(a). Appellant failed to do so.

      However, as we noted above, on July 21, 2014, Appellant pro se filed

a second PCRA petition, claiming that Attorney Zerega was ineffective and


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seeking leave to appeal the October 23, 2013 order nunc pro tunc.         See

Commonwealth v. Fairiror, 809 A.2d 396, 397 (Pa. Super. 2002)

(“[Fairiror’s] January 8, 2001 petition for reinstatement of PCRA appellate

rights nunc pro tunc must be considered a second [] PCRA petition.”). The

question then becomes whether Appellant timely filed the petition to

reinstate his right to appeal the order denying his first PCRA petition. See

id. (“Although [Commonwealth v. Hall, 771 A.2d 1232 (Pa. 2001)] and

[Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999),] dealt with the

restoration of direct appeal rights, these cases teach that all requests for

reinstatement of appellate rights, including PCRA appellate rights, must

meet the timeliness requirements of the PCRA.”).

      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).       For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.”    Chester, 895

A.2d at 522. “Thus, ‘[i]f a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).




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        Instantly, Appellant was sentenced on September 21, 2010.           This

Court affirmed the judgment of sentence on December 20, 2011; thus,

because Appellant did not seek allowance of appeal, the judgment became

final thirty days later, on January 19, 2012. See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 1113(a). Accordingly, Appellant had until January 19, 2013, to file

timely a PCRA petition. Appellant filed his second PCRA petition on July 21,

2014.     Thus, his petition is patently untimely, and he had the burden of

pleading and proving one of the following exceptions:

        (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).

        Appellant’s second PCRA petition did not allege any of the statutory

exceptions to the PCRA’s one year time bar. Appellant, therefore, untimely

filed his second PCRA petition, and the PCRA court was without jurisdiction

to restore Appellant’s PCRA appeal rights nunc pro tunc, rendering his notice

of appeal untimely-filed.     Accordingly, we conclude that we are without

jurisdiction, and we quash this appeal.


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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2015




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