J-S30026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    FRANK ERIC FRANKLIN

                             Appellant                No. 1662 WDA 2017


             Appeal from the PCRA Order Entered October 24, 2017
                In the Court of Common Pleas of Fayette County
    Criminal Division at Nos.: CP-26-CR-0000275-2000; CP-26-CR-0000276-
                                      2000


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 21, 2018

        Appellant Frank Eric Franklin pro se appeals from the October 24, 2017

order of the Court of Common Pleas of Fayette County, which dismissed as

untimely his most recent request for collateral relief under the Post Conviction

Relief Act (the “PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The facts and procedural history underlying this case are undisputed.

As recounted by a prior panel of this Court:

              In 2000, Appellant was convicted and sentenced to 19 to 38
        years in prison for rape, attempted rape, and other charges
        related to his serial abuse of his daughters. His direct appeal was
        quashed; his appeal rights were reinstated via the PCRA; his
        judgment of sentence was affirmed by this Court; and our
        Supreme Court denied his petition for allowance of appeal on
        September 1, 2004. Commonwealth v. Franklin, 850 A.2d 7
        (Pa. Super. 2004) (unpublished memorandum), appeal denied,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       858 A.2d 108 (Pa. 2004).          Subsequent PCRA petitions merited
       Appellant no relief.

Commonwealth           v.    Franklin,     No.   894   WDA     2016,    unpublished

memorandum, at 1 (Pa. Super. filed February 16, 2017).

       On September 6, 2017, Appellant pro se filed the instant PCRA petition,

alleging, inter alia, ineffective assistance of counsel claims. On September

27, 2017, the PCRA court issued a notice of its intention to dismiss Appellant’s

petition without a hearing under Pa.R.Crim.P. 907. On October 24, 2017, the

PCRA dismissed as untimely Appellant’s PCRA petition, which the court

described as his sixth petition. Appellant pro se timely appealed. The PCRA

court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. Appellant complied. In response, the PCRA court

issued a statement in lieu of opinion.

       On appeal,1 Appellant raises three issues for our review:

       I.     Should the court appointed counsel have filed a “no-merit”
              without ever communicating with Appellant since counsel’s
              appointment, and especially where a meritorious issue was
              clearly present after direct appeal to Superior Court was
              dismissed due to direct counsel’s failure to file a timely brief:
              to comply with Pa.R.A.P. 2119(a), and failure to include a
              Pa.R.A.P. 2119(f) statement in his brief?

       II.    Did the trial court error by dismissing the post-conviction
              relief act petition pursuant to counsel’s “no-merit” letter that
              failed to comport with appellate standard’s governing
              withdrawal of counsel’s representation in post conviction
              relief act/direct appeal?

____________________________________________


1“In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of fact
and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citation omitted).

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      III.   Did the trial court error in denying indigent defendant
             representation during appeal process, after the Superior
             Court ordered of the court below is vacated. The case is
             remanded for an order granting an appeal nunc pro tunc,
             with assistance of counsel (4/29/03), as to the first appeal
             as of right: direct appeal is “critical stage” for purposes of
             rule that indigent defendant must be afforded assistance of
             legal counsel at every critical stage throughout criminal
             process, the lower court leaving his counsel withdraw
             (9/17/04), without appointing new counsel: the defendant
             lacked representation during decision making process.

Appellant’s Brief at 3 (unnecessary capitalization omitted) (sic).

      As a threshold matter, we must determine whether the court erred in

dismissing as untimely Appellant’s PCRA petition. A court cannot entertain a

PCRA petition unless the petitioner has first satisfied the applicable filing

deadline.    The PCRA contains the following restrictions governing the

timeliness of any PCRA petition.

      (b) Time for filing petition.--
      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:
             (i) the failure to raise the claim previously was      the
             result of interference by government officials with    the
             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.
      (2) Any petition invoking an exception provided in paragraph (1)
      shall be filed within 60 days of the date the claim could have been
      presented.


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      (3) For purposes of this subchapter, a judgment becomes 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 the
      review.

42   Pa.C.S.A.    §   9545(b).   Section    9545’s   timeliness   provisions   are

jurisdictional.   Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

Additionally, we have emphasized repeatedly that “the PCRA confers no

authority upon this Court to fashion ad hoc equitable exceptions to the PCRA

time-bar in addition to those exceptions expressly delineated in the Act.”

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

omitted).

      Here, the record reflects Appellant’s judgment of sentence became final

on November 30, 2004. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from November 30, 2004, to file his PCRA

petition, the current filing is facially untimely given it was filed on September

6, 2017, more than a decade later.

      The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. Here, Appellant has failed to allege, let alone

prove, any exceptions to the one-year time bar. The PCRA court, therefore,

correctly concluded that it lacked jurisdiction to entertain Appellant’s instant

PCRA petition. Accordingly, we affirm the PCRA court’s decision to dismiss as

untimely Appellant’s petition.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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