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[U] Commonwealth v. Miskovitch

Superior Court of Pennsylvania

September 10, 2013

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC MISKOVITCH, Appellant COMMONWEALTH OF PENNSYLVANIA
v.
ERIC M. MISKOVITCH, Appellant

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered February 28, 2012, in the Court of Common Pleas of Beaver County Criminal Division at Nos. CP-04-CR-0001448-1996, CP-04-CR-0001449-1996, CP-04-CR-0001450-1996, CP-04-CR-0001451-1996

Appeal from the Order, June 21, 2012, in the Court of Common Pleas of Beaver County Criminal Division at Nos. CP-04-CR-0001448-1996, CP-04-CR-0001449-1996, CP-04-CR-0001450-1996, CP-04-CR-0001451-1996

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND OTT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

In these consolidated appeals, appellant appeals from the February 28, 2012 order dismissing his second petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546, and from a June 21, 2012 order denying a motion to supplement the record. Finding no error, we affirm at No. 513 WDA 2012, and quash the appeal at No. 1177 WDA 2012.

On August 26, 1996, appellant entered a plea of nolo contendere to two counts of escape related to incidents at the Beaver County Jail on March 17, 1996 and June 8, 1996. Immediately following the plea, appellant was sentenced to an aggregate sentence of 2½ to 12 years' imprisonment. No direct appeal was filed.

On November 19, 2003, appellant filed a pro se PCRA petition. Counsel was initially appointed, but on July 2, 2007, counsel filed a "no-merit" brief and petition to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On September 21, 2007, the court dismissed the petition as untimely. On October 27, 2008, this court affirmed the order below, and on July 22, 2009, the supreme court denied appeal. Commonwealth v. Miskovitch, 964 A.2d 441 (Pa.Super. 2008) (unpublished memorandum), appeal denied, 602 Pa. 677, 981 A.2d 218 (2009).

On October 5, 2011, appellant filed an application for writ of habeas corpus. The court below denied the application on November 10, 2011, and on April 19, 2013, this court affirmed. Commonwealth v. Miskovitch, Nos. 69 WDA 2012 and 179 WDA 2012 (unpublished memorandum).

Meanwhile, on December 29, 2011, while the prior habeas corpus matter was still pending on appeal, appellant filed the instant PCRA petition. On February 9, 2012, the PCRA court issued notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without hearing.[1] On February 27, 2012, appellant filed a reply. On February 28, 2012, the PCRA court dismissed the petition; and on March 21, 2012, appellant filed this timely appeal. This is the matter at No. 513 WDA 2012.

On June 20, 2012, appellant filed a motion to supplement the record which included another application for writ of habeas corpus. On June 21, 2012, the PCRA court denied the motion, and on July 19, 2012, appellant filed a notice of appeal. This is the matter at No. 1177 WDA 2012.

Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court's determination, and whether the PCRA court's determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id.

A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008).

Appellant's judgment of sentence became final on September 26, 1996, 30 days after the judgment of sentence was entered, and the time for seeking direct appeal before this court expired. See 42 Pa.C.S.A. ยง 9545(b)(3); Pa.R.A.P., Rule 903(a), 42 Pa.C.S.A. The instant petition, filed December 29, 2012, is manifestly untimely, and cannot be reviewed unless appellant ...


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