Com. v. Ludovici, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN J. LUDOVICI,
Appellant No. 1576 MDA 2015
Appeal from the Order Entered August 20, 2015
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0000923-2003
BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 06, 2016
Appellant, John J. Ludovici, appeals pro se from the order dismissing
his third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541–9546, as untimely, without a hearing. The
Commonwealth has filed a motion to quash which was deferred to this panel
for disposition. We affirm the dismissal of the PCRA petition, and deny the
motion to quash as moot.
On October 20, 2004, a jury convicted Appellant of six counts of
robbery, two counts of impersonating a public servant (a police officer), one
count of recklessly endangering another person, one count of fleeing and
attempting to elude police, and one count of escape. On January 12, 2005,
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*
Retired Senior Judge assigned to the Superior Court.
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Appellant received a sentence of not less than sixty-six years’ and three
months’ nor more than one hundred and thirty-five years’ incarceration. The
trial court denied post sentence motions. This Court affirmed the judgment
of sentence. Our Supreme Court denied allowance of appeal, on August 29,
2006. See Commonwealth v. Ludovici, 898 A.2d 1130 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 906 A.2d 540 (Pa. 2006).
Appellant previously filed two unsuccessful PCRA petitions. On April 1,
2015, Appellant filed the instant third PCRA petition, pro se. The court
dismissed the petition on August 20, 2015, after proper notice pursuant to
Pa.R.Crim.P. 907, and consideration of Appellant’s response.
Appellant timely appealed. The PCRA court did not order a concise
statement of errors pursuant to Pa.R.A.P. 1925(b). The court filed a Rule
1925(a) opinion, referencing its June 29, 2015 Memorandum and Notice of
Intent to Dismiss. (See PCRA Court Rule 1925 Statement, 10/29/15); see
also Pa.R.A.P. 1925(a).
Preliminarily, we observe that Appellant’s brief is materially non-
compliant with our Rules of Appellate Procedure. See Pa.R.A.P. 2101-2189.
Most notably, Appellant has omitted from his brief a Statement of the
Questions Involved and virtually every other component required in an
appellate brief, except a purported Summary of Argument.
As a prefatory matter, although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural
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rules set forth in the Pennsylvania Rules of the Court. This Court
may quash or dismiss an appeal if an appellant fails to conform
with the requirements set forth in the Pennsylvania Rules of
Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251-52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).
We could quash this appeal on that basis alone. However, we note
that the docket entries confirm that despite Appellant’s apparent failure to
serve a copy of his brief on the Commonwealth, through the initiative and
helpfulness of the Clerk’s Office, the Commonwealth received a copy of the
brief, and was able to file a reply brief.1
Our standard and scope of review for the denial of a PCRA petition is
well-settled.
[A]n appellate court reviews the PCRA court’s findings of
fact to determine whether they are supported by the
record, and reviews its conclusions of law to determine
whether they are free from legal error. The scope of
review is limited to the findings of the PCRA court and the
evidence of record, viewed in the light most favorable to
the prevailing party at the trial level.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citations and
internal quotation marks omitted).
Initially, we must determine whether Appellant’s petition is untimely.
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1
The Commonwealth’s motion to quash was based in part on the delay of
receipt of Appellant’s brief and attendant difficulty in filing a responsive
reply. (See Motion to Quash Appeal and Motion to Defer the Filing of a Brief
for the Appellee, 1/28/16, at 1-4). The Commonwealth filed its brief, on
March 21, 2016.
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The filing mandates of the PCRA are jurisdictional in nature and
are strictly construed. Commonwealth v. Stokes, 598 Pa.
574, 959 A.2d 306, 309 (2008). The question of whether a
petition is timely raises a question of law. See Commonwealth
v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008). Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary. Commonwealth v.
Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). An untimely
petition renders this Court without jurisdiction to afford relief.
Commonwealth v. Gandy, 38 A.3d 899 (Pa. Super. 2012).
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).
Furthermore,
Pennsylvania law makes clear no court has jurisdiction to hear
an untimely PCRA petition. Commonwealth v. Robinson, 575
Pa. 500, 508, 837 A.2d 1157, 1161 (2003). Statutory time
restrictions are mandatory and jurisdictional in nature, and may
not be altered or disregarded to reach the merits of the claims
raised in the petition. Commonwealth v. Murray, 562 Pa. 1,
4, 753 A.2d 201, 203 (2000) (holding court lacks jurisdiction to
hear merits of PCRA claim where petition is filed in untimely
manner and no exception to timeliness requirements is properly
alleged and proved; timeliness requirements do not depend on
nature of violations alleged). A PCRA petition, including a
second or subsequent petition, must be filed within one year of
the date the underlying judgment becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). See Commonwealth v. Bretz, 830 A.2d 1273(Pa. Super. 2003); Commonwealth v. Vega, 754 A.2d 714 (Pa.
Super. 2000). A judgment is deemed 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 review.”
42 Pa.C.S.A. § 9545(b)(3); Pollard, supra.
The three statutory exceptions to the timeliness provisions
in the PCRA allow for very limited circumstances under which the
late filing of a petition will be excused. 42 Pa.C.S.A.
§ 9545(b)(1). To invoke an exception, a petition must allege
and the petitioner must prove:
(i) the failure to raise a claim previously was the
result of interference by government officials with the
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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 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)(i)-(iii). The PCRA specifically
provides that a petitioner raising one of the statutory exceptions
to the timeliness requirements must affirmatively plead and
prove the exception. Id. See also Commonwealth v.
Beasley, 559 Pa. 604, 741 A.2d 1258 (1999) (stating
petitioner’s burden is to plead and prove exception applies when
PCRA is untimely). The statutory exceptions to the timeliness
requirements of the PCRA are also subject to a separate time
limitation and must be asserted within sixty (60) days of the
date the claim could have been first presented. 42 Pa.C.S.A.
§ 9545(b)(2). “As such, when a PCRA is not filed within one
year of the expiration of direct review, or not eligible for one of
the exceptions, or entitled to one of the exceptions, but not filed
within 60 days of the date that the claim could have been first
brought, the trial court has no power to address the substantive
merits of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa–Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007),
appeal denied, 951 A.2d 1163 (Pa. 2008).
Here, Appellant’s judgment of sentence became final on November 27,
2006, when the time period for him to file for a writ of certiorari with the
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United States Supreme Court expired.2 Accordingly, Appellant had one year,
until November 27, 2007, to file a timely PCRA petition. Therefore, his pro
se third petition, filed on April 1, 2015, over seven years and four months
later, is untimely on its face, unless he pleads and proves one of the three
statutory exceptions to the time bar.
Appellant does neither. At best, liberally construed, Appellant presents
a claim of ineffectiveness of counsel. (See Appellant’s Brief, at unnumbered
pages 1-2). This does not present a statutory exception to the time bar.
Our Supreme Court has repeatedly held that a claim of ineffective assistance
of counsel does not save an otherwise untimely petition for review on the
merits. See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)
(citing Commonwealth v. Peterkin, 722 A.2d 638, 643 n.5 (Pa. 1998)).
Appellant raises no other cognizable exceptions to the time bar.
Appellant’s petition is untimely, with none of the statutory exceptions to the
timebar pleaded or proven. The PCRA court properly dismissed it.
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2
See United States Supreme Court Rule 13, which provides in relevant part:
A petition for a writ of certiorari seeking review of a judgment of
a lower state court that is subject to discretionary review by the
state court of last resort is timely when it is filed with the Clerk
within 90 days after entry of the order denying discretionary
review.
U.S. Sup. Ct. R. 13(1).
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Order affirmed. Motion to quash denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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