J-S33032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DONALD H. KIEHLMEIER

                        Appellant                   No. 1567 WDA 2015


             Appeal from the PCRA Order September 17, 2015
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0003208-2012;
                          CP-25-CR-0003217-2012


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED APRIL 15, 2016

      Appellant, Donald H. Kiehlmeier, appeals pro se from the order

entered in the Erie County Court of Common Pleas, which denied his first

petition filed under the Post-Conviction Relief Act (“PCRA”) at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

      The relevant facts and procedural history of this case are as follows.

On September 11, 2012, while he was on state parole, Appellant was

involved in two collisions, both of which Appellant initiated by ramming his

vehicle into two different occupied cars.    One of the cars was a police

vehicle. While attempting to flee, police stopped Appellant, who first refused

to obey police orders to get out of his car and then fought and kicked one

officer while he was trying to arrest Appellant. These events occurred after
___________________________

*Former Justice specially assigned to the Superior Court.
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Appellant had consumed enough alcohol to render him incapable of safe

driving.    Appellant refused to submit to breath or blood testing.        On

December 20, 2012, Appellant pled guilty at Docket No. 3208-2012 to one

count each of aggravated assault, resisting arrest, and possession of a small

amount of marijuana and at Docket No. 3217-2012 to one count of DUI

(related to the events at the companion docket number).        Appellant was

sentenced on February 13, 2013, to an aggregate term of sixty-one (61) to

one hundred fifty (150) months’ incarceration, with credit for time served.

Appellant filed no post-sentence motion or direct appeal.          Thus, the

judgment of sentence became final for purposes of the PCRA on March 15,

2013.

        On September 14, 2014, Appellant pro se filed what he called a motion

to modify and reduce his sentence nunc pro tunc.          The court properly

treated Appellant’s motion as a PCRA petition but did not appoint counsel to

represent Appellant. Instead, the court issued notice of its intent to dismiss

the petition without a hearing, per Pa.R.Crim.P. 907, as untimely. Appellant

failed to respond to the Rule 907 notice, and the court dismissed the petition

on October 10, 2014.     Four days later, Appellant filed an “amended PCRA

petition” on October 14, 2014, which the court also dismissed on October

22, 2014. On Monday, November 10, 2014, Appellant timely filed an appeal.

By judgment entered on June 15, 2015, this Court vacated the order

dismissing Appellant’s petition and remanded the case for the appointment


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of counsel to represent Appellant on his first PCRA petition.

      The PCRA court appointed counsel on June 23, 2015. Counsel filed a

motion to withdraw and a “no-merit” letter on August 18, 2015, pursuant to

Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and

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

Counsel concluded Appellant had no colorable claims for PCRA relief.      The

court again issued Rule 907 notice and granted counsel’s motion to withdraw

on August 24, 2015. Appellant filed a pro se response to the court’s Rule

907 notice, docketed September 10, 2015, in which he claimed he had a

plea agreement for 6 to 9 months’ incarceration that plea counsel failed to

present or pursue.    Appellant also claimed he had obtained a toxicology

report on a urine sample, taken the day after the incident, which stated

Appellant had no alcohol in his system at the time the sample was taken.

Appellant asked the court to order counsel to file a motion to modify his

sentence and a motion to withdraw his plea. (See Motion in Objection, filed

9/10/15, at 1-3.)    On September 17, 2015, the court denied Appellant’s

PCRA petition. Appellant timely filed a pro se notice of appeal on October 2,

2015 (prisoner mailbox rule) which was docketed on October 5, 2015. The

court did not order Appellant to file a concise statement of errors complained

of on appeal, and Appellant filed none.

      Appellant raises the following issues on appeal:

         WHETHER A FUNDAMENTAL ERROR AND MISCARRIAGE OF
         JUSTICE HAS CAUSED AN INNOCENT MAN TO PLEAD

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         GUILTY TO       A    CRIME   WITHOUT   EVIDENCE    OR   NOT
         THEREOF?

         WHETHER [THE] COURT MUST ALLOW [APPELLANT TO]
         WITHDRAW [HIS] GUILTY PLEA BECAUSE OF COUNSEL’S
         FAILURE TO CONSULT WITH HIS CLIENT?

(Appellant’s Brief at vii).

      As a preliminary matter, we must determine whether Appellant timely

filed his current PCRA petition. Commonwealth v. Harris, 972 A.2d 1196

(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely

PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157

(2003). A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment becomes final. 42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273

(Pa.Super. 2003). A judgment is deemed 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.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provision in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.     42 Pa.C.S.A. § 9545(b)(1).   To invoke an exception, a

petition must allege and the petitioner must prove:

         (i) the failure to raise a 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

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         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.A. § 9545(b)(1)(i)-(iii).   “As such, when a PCRA petition is not

filed within one year of the expiration of direct review, or not eligible for one

of the three limited exceptions, or entitled to one of the exceptions, but not

filed within 60 days of the date that the claim could have been first brought,

the trial court has no power to address the substantive merits of a

petitioner’s PCRA claims.”    Commonwealth v. Gamboa-Taylor, 562 Pa.

70, 77, 753 A.2d 780, 783 (2000).

      Instantly, the court sentenced Appellant on February 13, 2013.

Appellant did not file for further review, although he says he wanted to file

post-sentence motions and an appeal.          Thus, Appellant’s judgment of

sentence became final on March 15, 2013. See 42 Pa.C.S.A. § 9545(b)(3).

Appellant filed his first PCRA petition on September 12, 2014, more than one

year after his judgment of sentence became final.         See 42 Pa.C.S.A. §

9545(b)(1); Bretz, supra.      Accordingly, Appellant’s petition was patently

untimely.   Moreover, throughout the PCRA proceedings, Appellant raised

claims related to counsel’s stewardship during the plea process and to the

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length of his sentence. Even with the assistance of PCRA counsel, however,

Appellant was unable to plead and prove any cognizable exception to the

PCRA    timeliness   requirements.    See   42   Pa.C.S.A.   §   9545(b)(1).

Accordingly, Appellant’s petition remains time-barred; and the PCRA court

properly dismissed it. See Robinson, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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