J-S21041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS VALENTINE,

                            Appellant                No. 2874 EDA 2014


               Appeal from the PCRA Order September 11, 2014
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0003521-2011


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 08, 2015

        Appellant, Carlos Valentine, appeals pro se from the order dismissing

his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546 as untimely.1 We affirm.

        We summarize the procedural history of this case as follows. On May

30, 2012, after a non-jury trial, the court convicted Appellant of one count

each of aggravated assault, recklessly endangering another person, and

disorderly conduct, and two counts each of simple assault and harassment

for his participation in a fight at the corner of Levering Street and Locust

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   We note that the PCRA court’s order is dated September 10, 2014 and was
filed on September 11, 2014. Therefore, we will refer to it by its filed date
and have corrected the caption accordingly.
J-S21041-15



Avenue in Ardmore, Pennsylvania on March 19, 2011.2 The sentencing court

sentenced Appellant to an aggregate term of not less than three-and-one-

half nor more than ten years’ incarceration on August 15, 2012. Appellant

did not file a direct appeal.

       Appellant filed his first pro se PCRA petition on May 20, 2014. On May

29, 2014, the PCRA court appointed counsel. PCRA counsel filed a no-merit

letter dated August 18, 2014 and requested to withdraw pursuant to

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

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On August 20, 2014,

the PCRA court granted counsel’s application to withdraw and notified

Appellant of its intention to dismiss his PCRA petition without a hearing

pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant filed an

objection on September 9, 2014.                The PCRA court dismissed Appellant’s

petition as untimely on September 11, 2014.3 Appellant timely appealed on

October 3, 2014.4 While this appeal was pending, Appellant filed a motion

seeking remand for a PCRA court hearing.               This Court denied the motion
____________________________________________


2
  18 Pa.C.S.A. §§ 2702(a)(2),                  2705,   5503(a)(1),   2701(a)(1),   and
2709(a)(1), respectively.
3
  The PCRA court explained that because Appellant’s petition was untimely, it
“had no jurisdiction to review the merits of the underlying ineffectiveness of
counsel allegations.” (PCRA Court Opinion, 10/23/14, at 4).
4
  Pursuant to the PCRA court’s order, Appellant timely filed a Rule 1925(b)
statement on October 17, 2014. The court entered its Rule 1925(a) opinion
on October 23, 2014. See Pa.R.A.P. 1925.



                                           -2-
J-S21041-15



without prejudice to Appellant’s raising the issue in his brief.          (See Per

Curiam Order, 12/23/14).

        Appellant raises the following issue for our review: “Whether the trial

court    erred   in   dismissing   the   Appellant’s   current   PCRA   petition[?]”

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

        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).

               We also note that a PCRA petitioner is not automatically
        entitled to an evidentiary hearing. We review the PCRA court’s
        decision dismissing a 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.

                                     *    *    *



                                         -3-
J-S21041-15


            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. 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, 992-93 (Pa. Super. 2014)

(citations and quotation marks omitted).

     The PCRA states in relevant part:

     (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.



                                     -4-
J-S21041-15


              (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.A. § 9545(b)(1) and (2).

        Here, Appellant’s judgment of sentence became final on September

14, 2012. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, in order to comply

with the filing requirements of the PCRA, Appellant’s petition had to be filed

by September 16, 2013.5 Because the underlying petition was filed on May

20, 2014, it is facially untimely and the PCRA court lacked jurisdiction to

review it unless Appellant pleaded and proved one of the statutory

exceptions to the time bar under 42 Pa.C.S.A. § 9545(b)(1).

        Appellant has failed to address his petition’s untimeliness or plead any

facts that could invoke any of the statutory exceptions.      (See Appellant’s

Brief, at 3-5; Statement of Errors, 10/17/14).            Accordingly, we lack

jurisdiction to consider the merits of his petition. See Miller, supra at 992-

93.

        Order affirmed.




____________________________________________


5
    We note that September 14, 2013 fell on a Saturday.



                                           -5-
J-S21041-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




                          -6-
