Com. v. McCollum, N. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2007) (unpublished memorandum),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
____________________________________________
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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J-A04022-23
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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J-A04022-23
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2023
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