Com. v. McCall, A.

• Court: Superior Court of Pennsylvania
• Decided: January 14, 2019
• Docket: 1967 EDA 2017
• Status: Unpublished

Opinion

J-S82030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ADRIAN MCCALL : : Appellant : No. 1967 EDA 2017

Appeal from the PCRA Order June 15, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006747-2012

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED JANUARY 14, 2019

Appellant, Adrian McCall, appeals pro se from the June 15, 2017 order

dismissing his first petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On June 16, 2014, the trial court sentenced Appellant to an aggregate

term of 25½ to 52 years’ imprisonment following his convictions for third-

degree murder,1 possession of a firearm by a prohibited person,2 and

possessing an instrument of crime.3 On April 10, 2015, this Court affirmed.

Commonwealth v. McCall, 121 A.3d 1126, 2015 WL 7300557 (Pa. Super.

____________________________________________

1 18 Pa.C.S.A. § 2502(c).

2 18 Pa.C.S.A. § 6105(a)(1).

3 18 Pa.C.S.A. § 907(a). ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S82030-18

2015) (unpublished memorandum). Appellant did not seek allocatur from

our Supreme Court.

On May 26, 2016, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition. On May 11, 2017, the PCRA court

issued notice of its intent to dismiss the petition without an evidentiary

hearing. See Pa.R.Crim.P. 907. On June 15, 2017, the PCRA court dismissed

the petition. This timely appeal followed.4

Appellant presents three issues for our review:

1. Whether the [PCRA court erred] by dismissing [Appellant’s PCRA petition as untimely?

2. Whether trial counsel rendered ineffective assistance?

3. Whether Appellant received an illegal sentence?]

Appellant’s Brief at 5.5

In his first issue, Appellant argues that the PCRA court erred in

dismissing his petition as untimely. “The timeliness requirement for PCRA

petitions is mandatory and jurisdictional in nature.” Commonwealth v.

Montgomery, 181 A.3d 359, 365 (Pa. Super. 2018) (en banc), appeal denied,

4 The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal. During the pendency of this appeal, this Court remanded the case to the PCRA court for a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). At that hearing, Appellant knowingly, intelligently, and voluntarily waived his right to counsel for this appeal.

5We have combined two of Appellant’s issues and re-numbered the issues for ease of disposition.

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190 A.3d 1134 (Pa. 2018) (cleaned up). “The question of whether a petition

is timely raises a question of law, and where a petitioner raises questions of

law, our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Pew, 189 A.3d 486, 488 (Pa. Super. 2018) (citation

omitted).

A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1). “[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.” 42 Pa.C.S.A. § 9545(b)(3). Appellant’s judgment of sentence

became final on May 11, 2015, at the expiration of the time for seeking review

by the Supreme Court of Pennsylvania. Appellant’s petition was filed over one

year later. Thus, the petition was patently untimely.

An untimely PCRA petition may be considered if one of the following

three exceptions applies:

(i) the failure to raise the claim previously was the result of interference by 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

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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). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

In this case, Appellant failed to plead that he satisfied any of the

statutory exceptions to the PCRA’s one-year time bar. In his amended PCRA

petition, Appellant averred that his petition was timely. Appellant’s Amended

PCRA Petition, 3/16/17, at 3. Failure to plead the applicability of a timeliness

exception in the PCRA petition renders the PCRA court without jurisdiction to

consider the merits of the petition. See Commonwealth v. Derrickson, 923

A.2d 466, 468-469 (Pa. Super. 2007), appeal denied, 934 A.2d 72 (Pa. 2007).

As Appellant did not plead the applicability of a timeliness exception in his

amended petition, the PCRA court properly held that it lacked jurisdiction to

reach the merits of the petition.6 As the PCRA court lacked jurisdiction to

consider the merits of the petition, we do not address Appellant’s remaining

claims of error. See Commonwealth v. Woods, 179 A.3d 37, 43 (Pa. Super.

2017) (an illegal sentencing claim is insufficient to confer jurisdiction over an

6 In his brief, Appellant argues that he satisfied the statutory timeliness exception set forth in 42 Pa.C.S.A. § 9545(b)(1)(ii). Appellant’s Brief at 6. As this Court has held, however, “exceptions to the time bar must be pled in the PCRA petition, and may not be raised for the first time on appeal.” Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007), appeal denied, 959 A.2d 927 (Pa. 2008) (citation omitted).

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untimely PCRA petition); Commonwealth v. Edmiston, 65 A.3d 339, 349

(Pa. 2013) (an ineffective assistance of counsel claim is insufficient to confer

jurisdiction over an untimely PCRA petition).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/14/19

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