J-S36037-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                Appellee                 :
                                         :
                    v.                   :
                                         :
CHARLES EDWARD MCFARREN,                 :
                                         :
                Appellant                :   No. 2088 WDA 2014

          Appeal from the PCRA Order Entered October 31, 2014,
               in the Court of Common Pleas of Erie County,
            Criminal Division, at No.: CP-25-CR-0000244-2012

BEFORE:    PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 28, 2015

     Charles Edward McFarren (Appellant) appeals from the order entered

October 31, 2014, denying his petition filed pursuant to the Post Conviction

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

quash the appeal.

     On November 14, 2011, Appellant committed a gun-point robbery at

the Medicine Shoppe in Corry, Erie County, Pennsylvania. On April 23, 2013,

following a stipulated bench trial, Appellant was found guilty of robbery,

theft by unlawful taking or disposition, and possessing instruments of crime.

On July 18, 2013, Appellant was sentenced to an aggregate five to ten years’

incarceration, which included a mandatory minimum sentence imposed

pursuant to 42 Pa.C.S. § 9712.      Appellant did not file a post-sentence

motion or a direct appeal.



*Retired Senior Judge assigned to the Superior Court.
J-S36037-15


      On July 10, 2014, Appellant pro se filed a “Petition for Appointment of

Counsel for Representation for Filing a Post-Conviction Collateral Relief Act

(and) Petition for a 60 Day Extension to File Said (PCRA) to Secure Counsel

to Proceed with the Post-Conviction Collateral Relief Act.” The PCRA court

appointed counsel, who filed a supplemental PCRA petition on September

25, 2014, raising two claims of ineffective assistance of trial counsel.    On

October 9, 2014, the PCRA court issued notice of its intent to dismiss

Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907

and an accompanying opinion.        The PCRA court formally dismissed the

petition on October 31, 2014. Appellant did not file a notice of appeal to this

Court within thirty days of the entry of that order.

      On December 10, 2014, Appellant, through PCRA counsel, filed a

second PCRA petition requesting that his “right to direct appeal be reinstated

Nunc Pro Tunc.”1    PCRA Petition, 12/10/2014, at 1 (pages unnumbered).

Appellant essentially claimed that PCRA counsel was per se ineffective for

failing to file a requested appeal from the October 31, 2014 order denying

Appellant’s first PCRA petition.2, That same day, the PCRA court reinstated



1
  Although Appellant’s second PCRA petition focused on the failure of an
attorney to secure a defendant’s direct appeal rights following a judgment of
sentence, Appellant was requesting reinstatement of his right to appeal the
denial of his first PCRA petition.
2
  Specifically, Appellant alleged that he wrote to PCRA counsel requesting
that an appeal be filed; however, “due to an error in the office of [PCRA


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Appellant’s appellate rights nunc pro tunc.         On December 19, 2014,

Appellant filed a notice of appeal to this Court.

      Appellant presents one issue for our review:     “Did the [PCRA] court

commit reversible error in failing to apply the decisions of Alleyne v. United

States[, 133 S.Ct. 2151 (2013),] and Commonwealth v. Newman[, 99

A.3d 86 (Pa. Super. 2014),] which make[] [Appellant’s] mandatory sentence

illegal?” Appellant’s Brief at 1.

      Before we address Appellant’s issue, we must determine whether the

PCRA court had jurisdiction to entertain Appellant’s claim for nunc pro tunc

relief. The PCRA court denied Appellant’s first PCRA petition on October 31,

2014. 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 December 10, 2014, PCRA counsel

filed a petition to reinstate Appellant’s right to appeal the order denying his

first PCRA petition. The PCRA court should have treated that petition as a

second PCRA petition. 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


counsel], namely that the letter was placed in the wrong file,” a timely
appeal was not filed. PCRA Petition, 12/10/2014, at 1 (pages unnumbered).


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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)).

      Instantly, Appellant was sentenced on July 18, 2013. Because he did

not file a post-sentence motion or direct appeal, his judgment of sentence

became final on August 19, 2013.3 See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P.




3
 The 30th day following sentencing, August 17, 2013, fell on a Saturday.
See 1 Pa.C.S. § 1908 (excluding weekends and holidays from the


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903. Accordingly, Appellant had until August 19, 2014, to file timely a PCRA

petition.   Appellant filed his second PCRA petition seeking to reinstate his

right to appeal the order denying his first PCRA petition on December 10,

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. Therefore, the PCRA court was

without jurisdiction to restore Appellant’s PCRA appeal rights nunc pro tunc,




computation of time when the last day of the time period falls on a weekend
or holiday).



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rendering his notice of appeal untimely filed. Accordingly, we conclude that

we are without jurisdiction,4 and we quash this appeal.

     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 7/28/2015




4
 With regard to Appellant’s legality-of-sentence claim based on Alleyne,
which he raised for the first time in his brief to this Court, we observe that

     an issue pertaining to Alleyne goes to the legality of the
     sentence. It is generally true that “this Court is endowed with
     the ability to consider an issue of illegality of sentence sua
     sponte.” However, in order for this Court to review a legality of
     sentence claim, there must be a basis for our jurisdiction to
     engage in such review. As this Court recently noted, “[t]hough
     not technically waivable, a legality [of sentence] claim may
     nevertheless be lost should it be raised ... in an untimely PCRA
     petition for which no time-bar exception applies, thus depriving
     the court of jurisdiction over the claim.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Because
Appellant’s PCRA petition was filed untimely, we lack jurisdiction to engage
in review of Appellant’s claim.


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