Com. v. Carwheel, R.

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2015
• Docket: 1778 EDA 2014
• Status: Unpublished

Opinion

J-S18031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

RAZEEK CARWHEEL

Appellant No. 1778 EDA 2014

Appeal from the PCRA Order May 22, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012022-2007

BEFORE: BENDER, P.J.E., ALLEN, J., and MUNDY, J.

JUDGMENT ORDER BY MUNDY, J.: FILED MARCH 10, 2015

Appellant, Razeek Carwheel, appeals pro se1 from the May 22, 2014

order dismissing as untimely, his first petition for relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

On August 19, 2009, Appellant was convicted by a jury in absentia of

one count each of possession with intent to deliver and criminal conspiracy.2

On October 2, 2009, the trial court imposed an aggregate sentence of ten to

20 years’ imprisonment. No direct appeal was filed; therefore, Appellant’s ____________________________________________ 1 The PCRA court appointed counsel for Appellant, who later withdrew pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. Appellant does not challenge said withdrawal on appeal. 2 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903(a)(1), respectively. J-S18031-15

judgment of sentence became final on November 2, 2009, when the filing

period for a notice of appeal expired.3 See generally 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903(c). Appellant therefore had until November 3,

2010 to timely file a PCRA petition.4 As he filed the instant petition on

September 6, 2012, it was patently untimely.5 Moreover, Appellant’s brief

does not argue that any enumerated time-bar exception applies.

To the extent that Appellant’s argument can be construed as arguing

his PCRA petition is timely due to his absence from the proceedings, we

reject this argument. In general, the PCRA time-bar is not subject to any

type of equitable tolling. Commonwealth v. Miller, 102 A.3d 988, 992

(Pa. Super. 2014) (citation omitted). Furthermore, our Supreme Court has

consistently held that “a fugitive who returns to court should be allowed to

take the system of criminal justice as he finds it upon his return: if time for

filing has elapsed he may not file; if it has not, he may.” Commonwealth ____________________________________________ 3 We observe that the 30th day fell on Sunday, November 1, 2009. When computing the 30-day filing period “[if] the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday … such day shall be omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, the filing period expired on Monday, November 2, 2009. 4 On November 2, 2010, the courts were closed in observation of Election Day. Therefore, Appellant’s PCRA petition was due on November 3, 2010. See generally 1 Pa.C.S.A. § 1908. 5 We note the certified record contains the postmark showing Appellant’s PCRA petition was mailed on September 6, 2012. Therefore, we deem his petition filed on that date pursuant to the prisoner mailbox rule. See generally Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (citation omitted), appeal denied, 46 A.3d 715 (Pa. 2012).

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v. Judge, 797 A.2d 250, 258 (Pa. 2002) (citation omitted); accord

Commonwealth v. Doty, 997 A.2d 1184, 1188 (Pa. Super. 2010).

Therefore, Appellant’s absence from custody did not toll the PCRA time-bar.

Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s PCRA petition as untimely filed. Accordingly, the PCRA

court’s May 22, 2014 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/10/2015

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