Com. v. Etzweiler, D.

• Court: Superior Court of Pennsylvania
• Decided: July 11, 2018
• Docket: 1429 MDA 2017
• Status: Unpublished

Opinion

J-S28028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUSTIN LEE ETZWEILER : : Appellant : No. 1429 MDA 2017

Appeal from the PCRA Order, August 31, 2017, in the Court of Common Pleas of Dauphin County, Criminal Division at No(s): CP-22-CR-0002538-2014.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JULY 11, 2018

Dustin Lee Etzweiler appeals pro se 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 pertinent facts and procedural history are as follows: On September

17, 2015, Etzweiler entered a plea of no contest to rape, unlawful contact with

a minor, and related charges. That same day the trial court sentenced him,

in accordance with a negotiated plea agreement, to an aggregate term of six

to twelve years of incarceration. Etzweiler filed neither a post-sentence

motion nor an appeal to this Court. On April 13, 2017, he filed a pro se PCRA

petition. The PCRA court appointed counsel. PCRA counsel filed a motion to

withdraw and “no-merit” letter pursuant to Commonwealth v. Turner, 544 J-S28028-18

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc).

Within her “no-merit” letter, PCRA counsel opined that Etzweiler’s PCRA

petition was untimely and that Etzweiler could not establish an exception to

the PCRA’s time-bar. On June 17, 2017, the PCRA court issued Pa.R.Crim.P.

907 notice of its intent to dismiss Etzweiler’s PCRA petition without a hearing,

and granted PCRA counsel’s motion to withdraw. Etzweiler filed a response.

By order entered August 31, 2017, the PCRA court dismissed the petition as

untimely. This appeal follows. Both Etzweiler and the PCRA court have

complied with Pa.R.A.P. 1925.

Before addressing the issues Etzweiler raises on appeal, we must first

determine whether the PCRA court correctly determined that his first PCRA

petition was untimely filed. This Court’s standard of review regarding an order

dismissing a petition under the PCRA is to ascertain 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 the certified record.” Commonwealth v.

Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted).

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

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9545(b)(1)(i), (ii), and (iii), is met.1 A PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claims could

have been presented.” See Commonwealth v. Hernandez, 79 A.3d 649,

651-52 (Pa. Super. 2013) (citations omitted); see also 42 Pa.C.S.A. §

9545(b)(2). Asserted exceptions to the time restrictions for a PCRA petition

must be included in the petition, and may not be raised for the first time on

appeal. Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

Here, because Etzweiler did not file an appeal to this Court following his

sentencing, his judgment of sentence became final thirty days thereafter, or

on October 17, 2015. Thus, for purposes of the PCRA’s time bar, Etzweiler

had to file his first PCRA petition by October 17, 2016. Etzweiler filed his

petition on April 13, 2017. Thus, the petition is untimely, unless Etzweiler

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

exceptions applies. See Hernandez, supra.

Etzweiler has failed to prove any exception to the PCRA’s time bar.

Indeed, in his one-paragraph argument, he does not even acknowledge the

PCRA’s time restrictions or the exceptions thereto. Therefore, the PCRA court

correctly determined that it lacked jurisdiction to consider the merits of the

Etzweiler’s petition. We therefore affirm its order denying post-conviction

relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/11/18

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