Opinion
J-S44018-16 No. 1901 EDA 2015
08-24-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. LANNY B. HARRIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered October 23, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0903241-2002 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.:
Appellant, Lanny B. Harris, appeals pro se from the order the Court of Common Pleas of Philadelphia County entered on October 23, 2013 dismissing his petition pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.
The PCRA court summarized the relevant background in its July 28, 2015 opinion, which we adopt here by reference. Briefly, on March 17, 2005, following a probation revocation hearing, Appellant was sentenced to five to ten years' imprisonment in connection with his guilty plea to possession of a controlled substance (cocaine) with intent to deliver.
Appellant filed a PCRA petition on August 29, 2006, which the PCRA court dismissed on May 22, 2009. On January 28, 2013, Appellant filed the instant PCRA petition, his second, which the PCRA court dismissed on October 23, 2013, as untimely. On November 26, 2013, Appellant filed another PCRA petition, his third. The PCRA court appointed counsel, and on August 14, 2014 an amended PCRA petition was filed. On May 29, 2015, the PCRA court granted nunc pro tunc reinstatement of Appellant's right to appeal from the dismissal of the January 2013 PCRA petition. Upon request, Appellant's counsel was allowed to withdraw from the representation.
Appellant pro se timely appealed the order dismissing his second PCRA petition. The PCRA court ordered Appellant to file Pa.R.A.P. a 1925(b) statement within 21 days of the order. Appellant, however, failed to do so. The PCRA court order denying as untimely Appellant's January 28, 2013 PCRA petition is now before us for disposition.
Appellant argues the trial court erred in several instances with regard to his prior filings. Nowhere, however, does Appellant explain whether we can entertain the merits of his challenges. In fact, we cannot.
Appellant alleges he filed an untimely motion for reconsideration on October 21, 2005, which the trial court failed to treat as a PCRA petition. There is no record of a motion filed on that day. The trial court's docket sheet shows an entry on October 31, 2005 stating: "PETITION FILE MAINTENANCE ADMINISTRATIVE DELETION". The entry following the October 31, 2005 notation concerns the filing, on August 29, 2006, of Appellant's PCRA petition.
"[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." Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014).
A PCRA petition, including a second or a subsequent petition, must be filed within one year of the judgment becoming final. See 42 Pa.C.S.A. § 9545(b)(1). 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). There are some exceptions to this general rule. It is Appellant's duty, however, to allege and prove the applicability of the exceptions, and that the petition was filed within 60 days of the date the claim could have been presented. See 42 Pa.C.S.A § 9545(b)(2). Failure to do so precludes further review of the petition. See , e.g., Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999).
Here, Appellant's judgment became final on April 18, 2005, at the expiration of 30 days for filing a direct appeal. See Pa.R.A.P. 903; 42 Pa.C.S.A. § 9545(b)(3). Appellant had one year from that date to file a timely PCRA petition. The instant petition was filed on January 28, 2013, more than seven years after the expiration of the above deadline. The petition is, therefore, facially untimely. Thus, Appellant had to allege and prove he met one of the exceptions to the time-bar. Appellant did not do so. Accordingly, we affirm the order of the PCRA court dismissing Appellant's instant petition as untimely. We direct that a copy of the trial court's July 28, 2015 opinion be attached to any future filings in this case.
On appeal, for the first time, Appellant alleges that he met the "governmental interference" exception because the trial court failed to appoint counsel in connection with his October 21, 2005 motion. Appellant's Brief at 15. The argument is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). In any event, it is well-settled that the timeliness exceptions must be pled in the PCRA petition. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007) ("[E]xceptions to the time bar must be pled in the PCRA petition, and may not be raised for the first time on appeal."). Here, Appellant did not even acknowledge a timeliness issue, let alone address the applicability of any exception in his petition. Additionally, we do not see any connection between the trial court's alleged "error" in 2005 and the untimeliness of the instant petition. Finally, nowhere did Appellant state when he first learned of the "governmental interference" and what prevented him from filing a petition within 60 days from the discovery of the interference. See 42 Pa.C.S.A. § 9545(b)(2).
We also note that Appellant failed to file a Rule 1925(b) statement, despite the PCRA court's order to do so. Failure to file said statement generally results in a waiver of the issues raised on appeal. See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Hill , 16 A.3d 484, 494 (Pa. 2011).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/24/2016
Image materials not available for display.