Com. v. McCollum, N.

• Court: Superior Court of Pennsylvania
• Decided: February 21, 2023
• Docket: 876 MDA 2022
• Status: Unpublished

Opinion

J-A04022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NEAL I. MCCOLLUM : : : No. 876 MDA 2022

Appeal from the PCRA Order Entered May 18, 2022 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002018-2004

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

JUDGMENT ORDER BY DUBOW, J.: FILED: FEBRUARY 21, 2023

Appellant, Neal I. McCollum, appeals pro se from the order entered in

the Court of Common Pleas of Dauphin County dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

The PCRA court found that Appellant failed to invoke its jurisdiction because

Appellant filed his petition in an untimely manner and did not plead and prove

that the facts of his case fell within an exception to the PCRA’s jurisdictional

time-bar. We agree and, thus, affirm.

In April 2006, a jury convicted Appellant of Rape of a Child and related

offenses. The court sentenced Appellant to an aggregate 21-to-42-year term

of incarceration. This Court affirmed Appellant’s judgment of sentence and, on

July 10, 2008, our Supreme Court denied review. Commonwealth v.

McCollum, 945 A.2d 765 (Pa. Super. 2007) (unpublished memorandum),

appeal denied, 951 A.2d 1162 (Pa. 2008). Appellant did not petition the U.S. J-A04022-23

Supreme Court for a writ of certiorari and, thus, his judgment of sentence

became final on October 9, 2008.1

On April 11, 2022, Appellant pro se filed the instant PCRA Petition, his

fourth.2 On April 19, 2022, the PCRA court issued a Rule 907 notice of its

intent to dismiss Appellant’s petition without a hearing. The court explained

that Appellant untimely filed his petition and failed to plead an exception to

the PCRA’s time-bar. Appellant filed a response to the court’s notice but did

not address the timeliness of his petition.

On May 18, 2022, the PCRA court dismissed Appellant’s petition as

untimely. Appellant pro se filed a timely Notice of Appeal and both he and the

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

Appellant raises ten issues on appeal. Appellant’s Br. At 5. Before we

can address the merits of these issues, however, we must determine if they

are properly before us.3

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1 See U.S. Sup. Ct. R. 13(1); 42 Pa.C.S. § 9545(b)(3).

2 Appellant titled his petition as a “Motion in Arrest[ of] Judgment.” PCRA Petition, 4/11/22. The PCRA court properly construed Appellant’s motion as a petition filed pursuant to the PCRA. See PCRA Ct. Or., 4/19/22, at 2. See also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(iii) (providing 10 days to file a post- sentence motion in arrest of judgment); Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013) (“an untimely post-sentence motion filed after finality of judgment is to be treated as a PCRA petition.”).

3 “Our standard of review of a PCRA court’s dismissal of a PCRA petition is limited to examining whether the PCRA court’s determination is supported by the evidence of record and free of legal error.” Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc).

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It is well-established that “the PCRA’s timeliness requirements are

jurisdictional in nature and must be strictly construed; courts may not address

the merits of the issues raised in a petition if it is not timely filed.”

Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citation

omitted). Generally, a PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment of sentence

becomes final[.]” 42 Pa.C.S. § 9545(b)(1). Pennsylvania courts may consider

an untimely PCRA Petition only if the petitioner pleads and proves one of the

three exceptions enumerated in Section 9545(b)(1). Id. at § 9545(b)(1)(i)-

(iii).

In dismissing Appellant’s petition, the PCRA court found that Appellant

failed to invoke its jurisdiction. PCRA Ct. Or., 4/19/22, at 3. It explained that

Appellant filed his petition in an untimely manner and “has not proven, nor

even alleged, a timeliness exception[.]” Id. As a result, the court had “no

jurisdiction over the petition” and “no legal authority to address the

substantive claims” raised therein. Id. at 4.

We agree. Appellant’s judgment of sentence became final in October

2008. The instant petition, filed over 13 years later, is patently untimely.

Despite its patent untimeliness, Appellant did not assert any of the statutory

timing exceptions in his petition. Accordingly, we affirm the PCRA court order

dismissing Appellant’s petition as untimely.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/21/2023

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