J-S55026-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                          Appellee       :
                                         :
            v.                           :
                                         :
ALLEN GINN,                              :
                                         :
                          Appellant      :     No. 502 EDA 2014


           Appeal from the PCRA Order Entered February 4, 2014,
            In the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No. CP-51-CR-0232991-1993.


BEFORE: BOWES, SHOGAN and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED OCTOBER 21, 2014

      Appellant, Allen Ginn, appeals pro se from the order entered on

February 4, 2014, that dismissed his second petition for relief filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. We

affirm.

      The PCRA court set forth the relevant facts and procedural history of

this matter as follows:

             On October 30, 1995, Petitioner was found guilty by a jury
      presided over by the Honorable John Poserina of Murder in the
      Second Degree, Aggravated Assault, Robbery, Criminal
      Conspiracy, and Possession of an Instrument of Crime -
      Generally. On January 24, 1996, Petitioner was sentenced to a
      total of life imprisonment plus ten to twenty years. On December
      11, 1997, the Pennsylvania Superior Court affirmed the
      judgment of sentence, and the Supreme Court of Pennsylvania
      denied allocator on [August 28], 1998.
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           On August 3, 2005, Petitioner filed a pro se Motion to
      Vacate Void Judgment for Want of Subject Matter Jurisdiction.
      On February 2, 2006, the trial judge denied this Motion.

              On April 19, 2006, Petitioner filed a document entitled
      “Notice of Appeal” appealing the Court’s February 2006 Order.
      The document was returned to Petitioner by the appeals unit
      with a memorandum which stated that the appeal was filed late
      and that Petitioner had to request nunc pro tunc status with the
      trial judge. The Petitioner did not do so.

            The same Motion to Vacate Void Judgment was time-
      stamped with a new time-stamp dated May 12, 2006, by the
      Post Conviction Relief Act Unit, after the Motion had been denied
      by the trial judge as an ordinary motion. Counsel was appointed
      to represent Petitioner, and a Turner/Finley letter was filed. After
      review, Petitioner’s first PCRA was dismissed as untimely on May
      15, 2007.

            On March 14, 2012, Barbara Ginn, Next Friend of Allen
      Ginn, filed a Pro Se Writ of Coram Nobis. After review, on April
      25, 2012, the petition was dismissed under Pa.R.A.P. 501 for
      lack of standing to file as a non-aggrieved party and Pa.R.Crim.P
      901(B) for failure to attach proper verification. Barbara Ginn filed
      an appeal, which was subsequently withdrawn and discontinued
      on June 12, 2012.

             On August 25, 2013, Petitioner filed the instant petition.
      After conducting an extensive and exhaustive review of these
      filings, the record and applicable case law, this Court found that
      Petitioner’s petition for post conviction collateral relief was
      untimely filed. Therefore, this Court did not have jurisdiction to
      consider Petitioner’s second PCRA petition.

PCRA Court Opinion, 3/18/14, at 1-2. The PCRA court entered an order on

February 4, 2014, denying Appellant’s petition.       On February 18, 2014,

Appellant filed a timely appeal.




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         In this appeal, Appellant raises the following issues for this Court’s

consideration:

         Post Conviction Relief Act is available to challenge unlawful
         conviction and illegal sentence. Did the trial court err in applying
         this concept of the law to Appellant’s claims of unlawful
         commitment and detainment for ‘want of jurisdiction’?

         Pursuant to 42 § 9544, An issue has been previously litigated if:
         (a)(3) it has been raised and decided in a proceeding collaterally
         attacking the conviction and sentence. Did the PCRA Court err in
         applying this concept of law to Appellant’s habeas corpus claims?

Appellant’s Brief at 8 (verbatim).

         Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005).          We will not disturb the PCRA court’s

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

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, “[b]ecause the time limitations established by the PCRA are

jurisdictional in nature, a court lacks jurisdiction to address the claims raised

in an untimely petition.” Commonwealth v. Liebensperger, 904 A.2d 40,

45 (Pa. Super. 2006) (internal citations and quotation marks omitted); 42

Pa.C.S. § 9545(b)(1), (3). The PCRA provides that a petition for relief must

be filed within one year from the date the judgment of sentence becomes

final.    42 Pa.C.S. § 9545(b)(1).     Judgment of sentence becomes final for




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purposes of the PCRA at the conclusion of direct review or after the time

provided for seeking direct review has lapsed, if no direct review has been

taken. 42 Pa.C.S. § 9545(b)(3).

      However, the PCRA does provide exceptions to the one-year time bar

for filing a petition:

      (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 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.

42 Pa.C.S. § 9545(b)(1)-(2). These exceptions must be specifically pled and

proved. Liebensperger, 904 A.2d at 46.


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      At the outset, we note that Appellant’s statement of questions

presented bears little relation to the issues he argues in the argument

portion of his brief.   This violation of the Pennsylvania Rules of Appellate

Procedure is grounds upon which this Court is permitted to find waiver.

Commonwealth v. Levanduski, 907 A.2d 3 (Pa. Super. 2006); Pa.R.A.P.

2119. However, as we are able to discern the issues from Appellant’s PCRA

petition and brief on appeal, we will not deem the issues waived, and we will

proceed with our discussion.

      Here, in Appellant’s petition for writ of habeas corpus, which the trial

court correctly treated as a PCRA petition,1 Appellant claimed that his rights

to a speedy trial, to due process, and to counsel were violated. Petition for

Writ of Habeas Corpus, 8/29/13, at 14-15; Memorandum of Law in Support

of Petition for Writ of Habeas Corpus, 8/29/13, at 2. Appellant argues that

the issues he raised in his petition for writ of habeas corpus fall outside the

PCRA, and therefore, he is not subject to the PCRA’s timing requirements.

Appellant’s Brief at 20-24. We disagree.

      Initially, an asserted violation of the right to a speedy trial is analyzed

as due process claim under the PCRA.         Commonwealth v. Thomas, 44

A.3d 12, 20-21 (Pa. 2012). Moreover, Appellant has couched his argument


1
  The PCRA is intended as the “sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose that exist when this subchapter takes effect, including habeas
corpus and coram nobis.” 42 Pa.C.S. § 9542.

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regarding his right to a speedy trial in terms of prior counsels’ failures, which

this Court has held are cognizable under the PCRA.         Commonwealth v.

Prout, 814 A.2d 693, 696 (Pa. Super. 2002).         Therefore, the PCRA court

was correct in concluding that Appellant was required to adhere to the

PCRA’s timing requirements.

      Appellant’s judgment of sentence became final on November 26, 1998,

ninety days after the Supreme Court of Pennsylvania denied allocator on

August 28, 1998, and the time for filing a petition for a writ of certiorari in

the United States Supreme Court expired. U.S.Sup.Ct.R. 13. Thus, in order

to be considered timely, Appellant’s petition needed to have been filed on or

before November 26, 1999. However, Appellant’s petition was not filed until

August 29, 2013, and thus, it was more than fourteen years late and

patently untimely.

      As noted above, an untimely PCRA petition may be deemed timely if

the petitioner pleads and proves one of the exceptions set forth in 42

Pa.C.S. § 9545(b)(1)(i)-(iii) applies. Here, however, Appellant has failed to

allege, much less prove, that any of the exceptions to the PCRA time bar

apply.   Therefore, the PCRA court did not err in finding that Appellant’s

petition was time barred.     Consequently, because the PCRA petition was

untimely and no exceptions applied, the PCRA court lacked jurisdiction to

address the claims presented and grant relief.        See Commonwealth v.




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Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding that the PCRA court

lacked jurisdiction to hear untimely petition). Likewise, we lack jurisdiction

to reach the merits of this appeal. See Commonwealth v. Johnson, 803

A.2d 1291, 1294 (Pa. Super. 2002) (holding that the Superior Court lacked

jurisdiction to reach the merits of an appeal from untimely PCRA petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/21/2014




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