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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :      IN THE SUPERIOR COURT OF
                                       :            PENNSYLVANIA
                  v.                   :
                                       :
MATTHEW ONDREAKO,                      :          No. 1569 WDA 2017
                                       :
                       Appellant       :


            Appeal from the PCRA Order, September 25, 2017,
               in the Court of Common Pleas of Erie County
             Criminal Division at No. CP-25-CR-0003062-2011


BEFORE: STABILE, J., MUSMANNO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MAY 02, 2018

     Matthew Ondreako appeals from the September 25, 2017 order

entered in the Court of Common Pleas of Erie County that denied his petition

filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546

(“PCRA”). PCRA counsel has also filed a petition to withdraw. We affirm.

     The record reflects that on May 15, 2012, a jury convicted appellant of

aggravated indecent assault of a child, endangering the welfare of children,

corruption of minors, and indecent assault.1 On November 1, 2012, the trial

court imposed an aggregate sentence of 8 to 16 years of imprisonment. No

post-sentence motions were filed.    On March 18, 2013, appellant filed a

pro se PCRA petition seeking to have his direct appeal rights reinstated for


1  18 Pa.C.S.A.   §§   3125(b),    4304(a),   6301(a)(1),   and   3126(a)(7),
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trial counsel’s failure to file a direct appeal. Counsel was not appointed to

represent appellant.    On March 21, 2013, the trial court entered an order

that reinstated appellant’s direct appeal rights and appointed counsel to

represent appellant on direct appeal.      On December 4, 2013, this court

affirmed appellant’s judgment of sentence. Commonwealth v. Ondreako,

93 A.3d 501 (Pa.Super. 2013) (unpublished memorandum).           Appellant did

not file a petition for allowance of appeal with our supreme court.

      The record further reflects that the trial court deemed correspondence

received from appellant, post-marked April 26, 20172 and entered on the

docket on May 5, 2017, as appellant’s first PCRA petition.       (Trial court’s

notice of intent to dismiss PCRA petition pursuant to Pa.R.Crim.P. 907,

8/25/17.) The trial court appointed William J. Hathaway as PCRA counsel.

Attorney Hathaway subsequently filed a “no-merit” letter and a petition for

leave to withdraw.     On August 25, 2017, the trial court filed its notice of

intent to dismiss PCRA petition pursuant to Pa.R.Crim.P. 907.               On

September 25, 2017, the trial court denied Attorney Hathaway’s petition for

leave to withdraw.     On the same day, the trial court entered an order

dismissing appellant’s PCRA petition.




2 Pursuant to the prisoner mailbox rule, we deem appellant’s pro se PCRA
petition to have been filed on April 26, 2017. See Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997) (deeming a pro se appellant’s appeal
to be filed on the date the appellant deposits the appeal with prison
authorities and/or places it in the prison mail box and accepting as proof of
mailing an appeal any reasonably verifiable evidence).


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         On October 24, 2017, Attorney Hathaway, on appellant’s behalf, filed a

notice of appeal to this court.           The trial court ordered appellant to file a

concise     statement       of   errors   complained     of   on   appeal    pursuant   to

Pa.R.A.P. 1925(b).          In response, Attorney Hathaway filed a statement of

intent     to    file   a   Turner/Finley3      brief.        On   January    25,   2018,

Attorney Hathaway filed a Turner/Finley no-merit letter in the form of an

appellant’s brief, wherein he concludes that appellant’s PCRA petition is

untimely and his claims otherwise lack arguable merit.                 On January 26,

2017, Attorney Hathaway filed an application to withdraw. Appellant has not

filed a response to either the no-merit letter or the application to withdraw.

Additionally, the Commonwealth filed a letter with this court declining to file

an appellee’s brief because it concurs with the positions of the PCRA court

and Attorney Hathaway.

         Pursuant to Turner/Finley, before withdrawal on collateral appeal is

permitted, an independent review of the record by competent counsel is

required.       Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).

Counsel must then submit a no-merit letter that (1) details the nature and

extent of his or her review; (2) lists each issue the petitioner wishes to have

reviewed; and (3) explains why the petitioner’s issues lack merit. Id. The

court then conducts its own independent review of the record to determine




3 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).


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whether the petition indeed lacks merit.        Id.   Counsel must also send

petitioner: “(1) a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s

petition to withdraw; and (3) a statement advising petitioner of the right to

proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa.Super. 2007) (citation omitted).

         Our review of the record demonstrates that Attorney Hathaway has

substantially complied with each of the above requirements.        Additionally,

Attorney Hathaway sent appellant copies of the Turner/Finley no-merit

letter and his application to withdraw and advised appellant of his right to

retain new counsel or proceed pro se. See Commonwealth v. Widgins,

29 A.3d 816, 818 (Pa.Super. 2011).

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).      “A 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,



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120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

       Here, this court affirmed appellant’s judgment of sentence on

December 4, 2013. The record further reflects that appellant did not seek

discretionary review of this court’s decision by our supreme court.

Consequently, appellant’s judgment of sentence became final on January 3,

2014, at the expiration of time for seeking discretionary review by our

supreme     court.        See   42 Pa.C.S.A.         § 9545(b)(3);       Pa.R.A.P.    903;

Commonwealth         v.    Cintora,      69   A.3d    759,   763       (Pa.Super.    2013).

Therefore, appellant’s petition, filed April 26, 2017, is facially untimely. As a

result, the PCRA court lacked jurisdiction to review appellant’s petition,

unless appellant alleged and proved one of the statutory exceptions to the

time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time-bar are:                    when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has newly-discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right     retroactive.        42     Pa.C.S.A.     §     9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a



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valid exception to the PCRA time-bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here, appellant complains that the Commonwealth had offered him a

“deal” that he wanted to take but that his “attorney has pointed me not to

take it.”   (Appellant’s pro se PCRA petition, 4/26/17 at unnumbered

page 1.) Appellant contends that “[i]f he took that deal[, he] would of [sic]

only got a sentence of 4-8 years.” (Id.)

      Having conducted an independent review of the record, we are

satisfied that appellant has failed to invoke a valid exception to the time-bar,

the PCRA court lacked jurisdiction to review appellant’s petition, and we may

not review the petition on appeal. We, therefore, grant Attorney Hathaway’s

petition to withdraw and affirm the PCRA court’s order.

      Petition to withdraw granted. Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 5/2/2018




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