J-S12025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                     v.

JAHMAL OLLIVIERRI,

                          Appellant                 No. 1628 MDA 2017


                  Appeal from the Order entered, May 12, 2017,
               in the Court of Common Pleas of Schuylkill County,
              Criminal Division at No(s): CP-54-CR-0001241-2010


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED MAY 02, 2018

      Jahmal Ollivierri appeals from the order denying as untimely his first

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A

§§ 9541-9546. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

         [Ollivierri] was sentenced on November 21, 2011 for
         charges of homicide – third degree murder, conspiracy to
         commit robbery, robbery and burglary arising from the
         shooting death of Bruce Forker in the latter’s home. The
         term of incarceration imposed [pursuant to a guilty plea
         agreement] on the homicide offense was fifteen years to
         thirty years to run consecutive to an eight year sentence
         [Ollivierri] was serving in New York. Lesser terms of
         incarceration on the other offenses to which [Ollivierri]
         pled guilty were imposed to run concurrent to that
         imposed on the homicide. [Ollivierri] received no credit for
         pre-sentence imprisonment because all pre-sentence time
         was believed to have been applied to [his] New York
         sentence which he had been serving at all relevant times –
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        namely, prior to arrest and throughout all the proceedings
        in this case. At sentencing, [Ollivierri] was notified by the
        court of the right to ask to modify the sentence to seek
        any credit time not applied in his New York case and the
        time in which to do so. [Ollivierri] never filed a motion to
        do so.

           The sentence imposed by this court coincided precisely
        to the terms of the written plea agreement [Ollivierri] had
        entered with the Commonwealth which clearly provided for
        both the cumulative fifteen to thirty years term of
        incarceration and that it be served consecutive to the New
        York sentence [Ollivierri] was serving.          All of the
        sentencing information on the terms of the incarceration
        and the fact that the sentence was to be served
        consecutive to [the sentence Ollivierri] was serving in New
        York was made known to [Ollivierri] at the latest as of the
        time he entered the plea agreement. Further, [Ollivierri]
        had been so advised by the court verbally at the guilty
        plea and sentencing proceeding. In this regard, the court
        not only discussed the terms of the plea agreement but
        asked if [Ollivierri] understood what “consecutive” meant –
        to which [he] replied “yes.” The court further described
        for [Ollivierri] how he would have to first complete his
        eight year New York prison sentence before the fifteen to
        thirty year Pennsylvania incarceration would begin.

PCRA Court Opinion, 11/22/17, at 2-3 (citations omitted).

     Ollivierri filed neither a post-sentence motion nor a direct appeal. On

March 20, 2017, he filed a “Nunc Pro Tunc Petition for Post-Conviction

Relief,” in which he asserted multiple claims regarding his guilty plea,

asserted his innocence, and challenged the discretionary aspects of

sentence, including the fact that his Pennsylvania sentence was imposed

consecutive to his New York sentence.     Ollivierri requested an evidentiary

hearing and the appointment of counsel.




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       On March 23, 2017, the PCRA court entered an order in which it found

Ollivieri’s petition to be untimely, and, therefore, issued Pa.R.Crim.P. 907

notice of its intent to dismiss the petition without a hearing.           The order

further appointed current counsel to represent Ollivierri. Thereafter, counsel

requested a transcript of the guilty plea and sentencing proceeding. On April

19, 2017, noting that the pertinent transcript was filed on April 13, 2017,

the PCRA court extended the time for Ollivierri to respond to its Rule 907

order until April 30, 2017.         Ollivierri did not file a response.   By order

entered May 12, 2017, the PCRA court dismissed as untimely Ollivierri’s

petition. This appeal follows, the PCRA court’s granting of Ollivieri’s pro se

request for the reinstatement of his appellate rights nunc pro tunc.1

       Before addressing the multiple claims raised in Ollivierri’s brief, we

must first determine whether the PCRA court correctly determined that

Appellant’s petition for post-conviction relief was untimely filed. This Court’s

standard of review regarding an order dismissing a petition under the PCRA

is “to determine whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.           The PCRA court’s

findings will not be disturbed unless there is no support for the findings in


____________________________________________


1 Although Ollivierri successfully sought to reinstate his appellate rights pro
se, current counsel filed his brief.        In addition, we note that the
Commonwealth had not filed a brief in this appeal.




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the certified record.      Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.

Super. 2013) (citations omitted).

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.2 42 Pa.C.S.A § 9545. A PCRA petition

invoking one of these statutory exceptions must “be filed within 60 days of



____________________________________________


2   The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.A. §§ 9545(b)(1)(i), (ii), and (iii).




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the date the claims could have been presented.” See Hernandez, 79 A.3d

651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).

      Appellant did not file an appeal to this Court following his sentencing

on November 21, 2011. Thus, for purposes of the time restrictions of the

PCRA, Appellant’s judgment of sentence became final on December 22,

2011, after the thirty-day period for requesting such relief expired. See 42

Pa.C.S.A. § 9545(b)(3).      Therefore, Appellant needed to file the PCRA

petition at issue by December 22, 2012, for it to be timely.      As Appellant

filed the instant petition on March 20, 2017, it is untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar in his petition and his appellate brief. Ollivierri makes the assertion

that, “[i]n regards to the timeliness of [his] PCRA Petition[,] 42 Pa.C.S. [§

9545(b)(1)(ii)] allows a late filing upon fact not known to” him. Ollivierri’s

Brief at 5.   He then avers that he “was unaware of the Department of

Corrections calculation as to his credit time and consecutive sentence until

the expiration of his New York sentence[,]” and immediately filed his PCRA.

Id.   Ollivierri’s claim that his PCRA petition is based on “newly discovered

evidence” is waived because he did not raise it in his petition.           See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007)




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(explaining exceptions to the time restrictions in the PCRA must be included

in the petition and may not be raised for the first time on appeal).

      In sum, the PCRA court correctly concluded that it lacked jurisdiction

to address Ollivierri’s PCRA petition, because it was untimely filed.   We

therefore affirm its order denying post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2018




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