Opinion
J-S75042-13 No. 1988 EDA 2013
03-27-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. JAMES ROBERT RILEY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order entered on May 2, 2013
in the Court of Common Pleas of Monroe County,
Criminal Division, No. CP-45-CR-0001135-2007
BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
James Robert Riley ("Riley") appeals from the Order denying his Petition for Relief filed pursuant to the Post Conviction Relief Act ("PCRA"). We affirm.
The PCRA court summarized the relevant history of the instant appeal as follows:
On July 27, 2007, [Riley] was arrested and incarcerated in connection with a number of sexual offense charges. He entered a plea of guilty to one count of Indecent Assault-Person Unconscious[,] on January 7, 2008. The Commonwealth then filed a motion for a Sexually Violent Predator (SVP) hearing pursuant to Megan's Law. The SVP hearing was held on April 14, 2008[,] at which time [Riley] was found to a sexually violent predator. [Riley] was then sentenced to a period of incarceration for no less than 30 months and no more than 60 months. No post-sentence motion or appeal was filed. Nearly three years later, on March 18, 2011, [Riley] filed a pro se motion challenging the SVP provisions as unconstitutional. AnPCRA Court Opinion, 9/8/13, at 1-2.
Amended Petition for Post-Conviction Relief was filed on [Riley's] behalf by counsel on February 14, 2013. The Commonwealth filed its [A]nswer on February 20, 2013, arguing that [Riley's] Petition was untimely. On May 2, 2013, [the PCRA court] issued [its] Opinion and Order Denying [Riley's] Petition for Post-Conviction Relief as Untimely....
On May 31, 2013, Riley mailed a pro se Request for Timely Appeal to the Clerk of Courts of Monroe County, Pennsylvania. In accordance with Pa.R.Crim.P. 576, the Clerk of Courts time-stamped, docketed and accepted the Request for filing. PCRA Court Order, 6/5/13. The Clerk then forwarded the Request to Riley's counsel. Counsel filed a Motion to Withdraw as Counsel, which the PCRA court denied on July 8, 2013. PCRA Court Order, 7/8/13. On July 11, 2013, Riley's counsel filed a Notice of Appeal Nunc Pro Tunc. However, Riley's counsel never sought nor was granted permission to file a nunc pro tunc appeal.
Pennsylvania Rule of Criminal Procedure 576 provides, in relevant part, as follows:
In any case in which a defendant is represented by an attorney, if the defendant submits for filing a written motion, notice, or document that has not been signed by the defendant's attorney, the clerk of courts shall accept it for filing, time stamp it with the date of receipt and make a docket entry reflecting the date of receipt, and place the document in the criminal case file. A copy of the time stamped document shall be forwarded to the defendant's attorney and the attorney for the Commonwealth within 10 days of receipt.Pa.R.Crim.P. 576(A)(3).
Notwithstanding, the record reflects that Riley filed a pro se Request for Timely Appeal on May 31, 2013. Because Riley filed his appeal request within the 30-day appeal period, we will consider his appeal to be timely filed. Through counsel, Riley filed a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
A pro se prisoner's appeal shall be considered to be filed when the appeal is deposited with prison officials or placed in the prison mailbox. Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. Super. 2013).
Riley presents the following claim for our review: "Was [Riley's] PCRA [Petition] timely filed since [he] was not notified of his rights by his trial counsel?" Brief for Appellant at 5.
Riley claims that the he was not aware of his right to file a PCRA petition, and he could not ascertain his rights by due diligence. Id. at 9. According to Riley, he was not aware that "he could not only challenge Megan's [L]aw['s] constitutionality[,] but also whether his [SVP] evaluation was accurate and done properly." Id. Riley asserts that his lack of knowledge of the judicial process, and the fact that his attorney had not advised him of those rights, prevented him from filing a timely PCRA or appeal. Id. at 10.
An appellate court's standard of review of an order denying a PCRA petition is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989 (Pa. Super. 2006).
A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). "This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition." Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). A judgment of sentence "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 time for seeking the review." Id. (quoting 42 Pa.C.S.A. § 9545(b)(3)).
Here, Riley filed his PCRA Petition almost three years after his judgment of sentence became final. Thus, his Petition is facially untimely. However, we may consider an untimely PCRA petition if the petitioner pleads and proves one of the following three statutory exceptions to the timeliness requirement: newly discovered facts, interference by a government official, and a newly-recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). A petition asserting one of these exceptions must also establish that the exception was raised within sixty days of the date the claim could have been first presented. Id. § 9545(b)(2).
The record reflects that Riley's PCRA Petition was untimely filed, and he failed to plead and prove one of the statutory exceptions to the PCRA's timeliness requirement. As a result, the PCRA court lacked jurisdiction to address Riley's substantive claim. We therefore affirm the PCRA court's Order.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary