Com. v. Mitchell, R.

Opinion

J-S19041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : RALPH MITCHELL, : : Appellant : No. 1662 EDA 2015

Appeal from the PCRA Order May 14, 2015 in the Court of Common Pleas of Montgomery County, Criminal Division, No(s): CP-46-CR-0003310-2005; CP-46-CR-0003311-2015; CP-46-CR-0003312-2005; CP-46-CR-0003313-2005

BEFORE: BENDER, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 29, 2016

Ralph Mitchell (“Mitchell”) appeals, pro se, from the Order dismissing

his third Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 See 42 Pa.C.S.A. § 9541-9546. We affirm.

In April 2006, Mitchell was convicted of two counts each of delivery of

a controlled substance and possession with intent to deliver cocaine, and one

count of resisting arrest.2 The trial court sentenced Mitchell to an aggregate

1 Although Mitchell characterizes his Petition as one seeking “State Habeas Corpus Relief,” the trial court properly construed his filing as a PCRA Petition because the underlying claims are encompassed by the PCRA. See 42 Pa.C.S.A. § 9542 (stating that the PCRA is “the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies . . . including habeas corpus . . . .”); see also Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2003) (stating that “any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.”). 2 35 P.S. § 780-113(30); 18 Pa.C.S.A. § 5104. J-S19041-16

prison term of 10 to 20 years. This Court affirmed Mitchell’s judgment of

sentence. See Commonwealth v. Mitchell, 929 A.2d 243 (Pa. Super.

2007) (unpublished memorandum), appeal denied, 940 A.2d 363 (Pa.

2007).

In 2008, Mitchell, pro se, filed his first PCRA Petition. The PCRA court

subsequently dismissed Mitchell’s Petition. This Court affirmed the

dismissal. See Commonwealth v. Mitchell, 32 A.3d 839 (Pa. Super.

2011) (unpublished memorandum).

In 2011, Mitchell filed a Motion for Modification of Sentence nunc pro

tunc, which the PCRA court treated as a second PCRA Petition. The PCRA

court dismissed the Petition, and this Court affirmed the dismissal. See

Commonwealth v. Mitchell, 55 A.3d 133 (Pa. Super. 2012) (unpublished

memorandum).

In January 2015, Mitchell, pro se, filed the instant Petition. After

issuing a Pa.R.Crim.P. 907 Notice of Intent to Dismiss, the PCRA court

dismissed the Petition. Mitchell filed a timely Notice of Appeal.

On appeal, Mitchell raises the following questions for review:

I. Whether the [PCRA] court in this matter violated [Mitchell’s] procedural and substantive [d]ue [p]rocess [rights] by denying [] his right to [PCRA] [r]eview?

II. Whether under the [PCRA,] [] [Mitchell] has a [c]onstitutional right to litigate claims?

III. Whether there is a violation of [s]ubject [m]atter [j]urisdiction?

-2- J-S19041-16

IV. Whether [PCRA] counsel was [i]neffective?

Brief for Appellant at 4.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

Under the PCRA, any PCRA petition “including a second or subsequent

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

final[.]” See 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of

sentence becomes final at the conclusion of direct review or at the expiration

of time for seeking review. Id. § 9545(b)(3). The PCRA’s timeliness

requirements are jurisdictional in nature and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Here, Mitchell’s judgment of sentence became final in March 2008,

when the time for seeking direct review expired. See 42 Pa.C.S.A.

§ 9545(b)(3); see also U.S. Sup. Ct. Rule 13. Thus, Mitchell had until

March 2009 to file a Petition for relief under the PCRA. Because Mitchell did

not file the instant PCRA Petition until January 2015, his Petition is facially

untimely.

-3- J-S19041-16

We may consider an untimely PCRA petition if the petitioner can plead

and prove one of three exceptions set forth under 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Any petition invoking one of these exceptions “shall be

filed within 60 days of the date the claim could have been presented.” Id.

§ 9545(b)(2).

Here, Mitchell does not discuss the timeliness of his Petition, except to

argue that the timeliness requirements do not apply to his claims. See Brief

for Appellant at 9. However, Mitchell makes no attempt to raise one of the

three statutory exceptions. See Commonwealth v. Beasley, 741 A.2d

1258, 1261 (Pa. 1999) (stating that “it is the petitioner’s burden to plead in

the petition and prove that one of the exceptions applies. That burden

necessarily entails an acknowledgment by the petitioner that the PCRA

petition under review is untimely but that one or more of the exceptions

apply.”) (internal citation omitted).

Because Mitchell’s Petition is untimely, and fails to raise any of the

timeliness exceptions, we may not address the merits of his claims. See

id.; see also Albrecht, 994 A.2d at 1094. Thus, the PCRA court did not err

in dismissing Mitchell’s Petition as untimely.

Order affirmed.

-4- J-S19041-16

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/29/2016

-5-