J-S58022-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ANGELO LENELL DAVIS

                        Appellant                 No. 2202 MDA 2015


            Appeal from the PCRA Order November 16, 2015
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0003275-2006



BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 23, 2016

     Angelo Lenell Davis appeals from the November 16, 2015 order

denying him PCRA relief. We affirm.

     At approximately 3:00 a.m. on October 30, 2005, Harrisburg police

responded to a 911 call about a disturbance in Appellant’s residence. When

they arrived, police heard a woman screaming for help and sounds of a

physical altercation occurring inside.   Police broke down the door and

observed Appellant assaulting a female. The victim was crying and covered

in blood and was treated at an emergency room for a closed head injury and

broken nose.    On November 15, 2006, a jury convicted Appellant of

aggravated and simple assault. He was sentenced on January 30, 2007, to

three and one-half to ten years imprisonment. On December 26, 2007, we

* Retired Senior Judge assigned to the Superior Court.
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affirmed the judgment of sentence, rejecting his challenge to the sufficiency

of the evidence. Commonwealth v. Davis, 945 A.2d 759 (Pa.Super. 2007)

(unpublished memorandum).

     On May 22, 2008, Appellant filed a timely pro se PCRA petition and

raised claims of ineffective assistance of counsel.         PCRA counsel was

appointed,    and,   thereafter,   petitioned   for   withdrawal   pursuant    to

Commonwealth         v.   Turner,     544   A.2d      927   (Pa.   1988),     and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). After

Appellant responded to the withdraw request, counsel’s petition was granted

and PCRA relief was denied. On appeal, we affirmed. Commonwealth v.

Davis, 15 A.3d 540 (Pa.Super. 2010) (unpublished memorandum).

     Appellant filed various additional petitions for relief while the first PCRA

petition was pending on appeal.      He appealed the denial of one of those

petitions, which contained a request for credit for time served, and that

appeal was quashed due to defects in Appellant’s brief that precluded us

from reviewing the merits of his positions.     Commonwealth v. Davis, 87

A.3d 894 (Pa.Super. 2013) (unpublished memorandum).

     On January 22, 2015, Appellant filed three habeas corpus petitions,

which were all denied by order dated May 14, 2015. In the meantime, on

May 7, 2015, Appellant filed a second PCRA petition, which was dismissed by

order dated November 16, 2015.        This appeal was filed on December 14,




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2015 from the November 16, 2015 order. Appellant presents these issues

for our review:

         1. Whether the Court err[ed] in denying all three (3) of
            Petitioner’s Petitions for habeas corpus challenging his
            confinement and detention in violation of Pa. Rule of Crim.
            P. Rule 600 Speedy Trial, Sixth Amendment U.S.
            Constitution, Artic[le] 1 § 9 Pennsylvania Constitution;
            Double Jeopardy, Fifth Amendment U.S. Constitution,
            Artic[le] 1 § 10 Pennsylvania Constitution, Illegal
            Sentence violation of Due Process no Sentence Order was
            ever issued?

         2. Whether the court err[ed] and caused an “inordinate
            delay” in Petitioner’s timely filing of the PCRA within (60)
            days of when he became aware of the fact that no
            sentence order was issued by the trial or sentencing court
            in his case?


         3. Whether the court err[ed] when it denied Petitioner of the
            timely filed request for extension of time in which to file
            his timely response to the court[’]s memorandum opinion
            giving (20) day’s and not (30) to answer with other court
            deadlines due that the court was made known of and was
            fully aware of?

Appellant’s brief at 4.

      We first outline our standard of review of a PCRA court’s ruling:

             Under the applicable standard of review, we must
      determine whether the ruling of the PCRA court is supported by
      the record and is free of legal error. Commonwealth v.
      Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA
      court's credibility determinations, when supported by the record,
      are binding on this Court. Commonwealth v. Johnson, 600 Pa.
      329, 966 A.2d 523, 532, 539 (2009). However, this Court
      applies a de novo standard of review to the PCRA court's legal
      conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d
      790, 810 (2007).



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Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

      Initially, we note that we lack jurisdiction over Appellant’s first issue.

Therein, Appellant complains about the dismissal of his three habeas corpus

petitions, which were denied on May 14, 2015.             An appeal must be filed

within thirty days after entry of an order. Pa.R.A.P. 903(a). This appeal was

filed on December 14, 2015, more than thirty days after the May 14, 2015

final order dismissing the three habeas corpus petitions. Hence, we cannot

consider the merits of Appellant’s first claim.

      Before we can address Appellant’s remaining two positions, which

relate to the denial of the May 7, 2015 PCRA petition, we must determine

whether that petition was timely filed as that issue also implicates our

jurisdiction. Commonwealth v. Miller, 102 A.3d 988 (Pa.Super. 2014). If

a PCRA petition is untimely, “neither this Court nor the trial court has

jurisdiction   over   the   petition.”   Id.   at   992   (citation   omitted);   see

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006) (“[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.”).

      Any PCRA petition has to be filed within one year of the date the

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must

determine when Appellant’s judgment of sentence became final.                      “A

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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. § 9545(b)(3). Since Appellant did not file a petition for

allowance of appeal from our December 26, 2007 affirmance of his January

30, 2007 judgment of sentence, that sentence became final under the PCRA

on January 25, 2008, which was thirty days after our decision.     Appellant

had until January 25, 2009 to file a timely PCRA petition, and the present

May 7, 2015 petition is untimely.   There are three exceptions to the one-

year time bar of § 9545:

      (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). “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)(2).




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      Appellant obliquely invokes one exception to the one-year filing

deadline in his second question presented on appeal. Specifically, Appellant

avers that the court erred and caused the delay in the filing of the May 7,

2015 petition. He maintains that the petition was filed within sixty days of

when he became aware of the fact that no sentencing order was entered in

this case. This argument suggests that the May 7, 2015 petition was timely

under the newly discovered facts exception outlined in § 9545(b)(ii). “The

timeliness exception set forth in Section 9545(b)(1)(ii) requires a petitioner

to demonstrate he did not know the facts upon which he based his petition

and could not have learned those facts earlier by the exercise of due

diligence.”   Commonwealth v. Brown, 111 A.3d 171, 176 (Pa.Super.

2015); see Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007).

However, our Supreme Court has clearly articulated that “to constitute facts

which were unknown to a petitioner and could not have been ascertained by

the exercise of due diligence,” so as to qualify for the newly discovered facts

exception,    “the   information   must    not   be    of   public   record[.]”

Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013).

      In the present case, the criminal record of this matter, which is of

public record, clearly revealed that a sentencing order was purportedly

lacking. Therefore, Appellant’s discovery of that documents alleged absence

is not a newly discovered fact falling within the invoked exception.     Thus,

Appellant’s May 7, 2015 PCRA petition remains untimely.

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      Appellant’s third claim is that he was not given sufficient time to reply

to the court’s intent to dismiss the May 7, 2015 PCRA petition. The petition

was untimely, and Appellant fails to establish that it fell within an exception

to the one-year time bar. Thus, his inability to respond to the court’s intent

to dismiss the petition was of no moment in this matter.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/23/2016




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