Com. v. Rosa, A.

Opinion

J-S36007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANGEL ROSA

Appellant No. 922 MDA 2015

Appeal from the Order Entered May 8, 2015 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001564-2011

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY MUNDY, J.: FILED MAY 05, 2016

Appellant, Angel Rosa, appeals pro se from the May 8, 2015 order

dismissing, as untimely, his second 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 April 25, 2012, the trial court sentenced Appellant to an aggregate

sentence of 27 to 55 years’ imprisonment, after Appellant entered an open

guilty plea to one count each of attempted murder, possession of a firearm

prohibited, and two counts of receiving stolen property and aggravated

____________________________________________ * Former Justice specially assigned to the Superior Court. J-S36007-16

assault.1 Appellant did not file a post-sentence motion with the trial court,

nor a direct appeal with this Court. As a result, Appellant’s judgment of

sentence became final on May 25, 2012, when the filing period for a notice

of appeal to this Court expired. See generally 42 Pa.C.S.A. § 9543(b)(3);

Pa.R.A.P. 903(c)(3). Appellant filed the instant petition on April 2, 2015;

therefore, it was facially untimely.2 See generally 42 Pa.C.S.A.

§ 9543(b)(1).

We have reviewed Appellant’s opening brief as well as his

supplemental brief. Nowhere in either filing does Appellant argue that any

of the enumerated time-bar exceptions applies. See generally id.

§ 9545(b)(1). As this Court has often stated, “[t]he petitioner has the

burden to plead in the petition and subsequently to prove that an exception ____________________________________________ 1 18 Pa.C.S.A. §§ 901(a), 6105(a)(1), 3925(a), 2702(a)(1), and 2702(a)(4), respectively. 2 We note Appellant timely filed his first PCRA petition on May 14, 2012. The PCRA court appointed counsel who filed an amended petition on June 24, 2013. The PCRA court dismissed said petition on October 30, 2013 after a hearing. This Court affirmed on August 20, 2014, and our Supreme Court denied allocatur on December 31, 2014. Commonwealth v. Rosa, 106 A.3d 168 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 106 A.3d 725 (Pa. 2014).

Furthermore, we note that although Appellant’s second PCRA petition was file-stamped on April 6, 2015, the certified record contains the envelope Appellant used to mail the same, which is postmarked April 2, 2015. Thus, under the prisoner mailbox rule, we deem Appellant’s second PCRA petition filed on April 2, 2015. 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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applies.” Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007)

(citation omitted), appeal denied, 944 A.2d 756 (Pa. 2008); accord

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

Therefore, the PCRA court lacked jurisdiction to consider the merits of

Appellant’s petition.

Based on the foregoing, we conclude the PCRA court properly

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

the PCRA court’s May 8, 2015 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/5/2016

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