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[U] Commonwealth v. Keffer

Superior Court of Pennsylvania

March 4, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
KYLE KEFFER Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order November 13, 2012 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003777-2008

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

PANELLA, J.

Appellant, Kyle Keffer, appeals pro se from the order entered November 13, 2012, by the Honorable John E. Blahovec, Court of Common Pleas of Westmoreland County, which denied his petition filed pursuant to the Post Conviction Relief Act (PCRA).[1] We affirm.

On March 7, 2011, Keffer entered a negotiated guilty plea to robbery – threatens immediate serious bodily injury, [2] theft by unlawful taking, [3] and receiving stolen property, [4] and was sentenced pursuant to the agreement a term of five to fifteen years' imprisonment. Keffer did not file a direct appeal.

On April 9, 2012, Keffer filed a pro se PCRA petition, after which counsel was appointed. On October 24, 2012, the PCRA court issued notice of its intent to dismiss Keffer's petition as untimely filed. On November 13, 2012, the PCRA court granted appointed counsel permission to withdraw from this matter and dismissed Keffer's PCRA petition. This timely appeal followed.

On appeal, Keffer raises several allegations of ineffective assistance of counsel. Preliminarily, we must determine whether Keffer's PCRA petition was timely filed. It is axiomatic that a PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. See 42 Pa.Cons.Stat.Ann. § 9545(b)(1). If a petition is filed after that one year date, the general rule is that the PCRA court lacks jurisdiction to hear the petition. However, section 9545(b) provides for three limited circumstances to the general rule in which such a petition may be filed beyond that one-year period:

(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.

42 Pa.Cons.Stat.Ann. § 9545(b)(1)(i)-(iii), (2). See also Commonwealth v. Pursell, 561 Pa. 214, 220, 749 A.2d 911, 914-915 (2000) ("The courts have no jurisdiction to grant [a litigant] relief unless he can plead and prove that one of the exceptions to the time bar provided in 42 [Pa.Cons.Stat.Ann.] § 9545(b)(1)(i)-(iii) applies."); Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en banc), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003) ("Since Appellant's PCRA petition is untimely, our review focuses on whether Appellant has pled and proven that one of the three limited exceptions to the timeliness requirements of the PCRA apply.").

When pleading one of the foregoing § 9545(b)(1) exceptions, a litigant is subject to a 60-day deadline for invoking an exception which commences from the date in which the claim could have been presented. See 42 Pa.Cons.Stat.Ann. § 9545(b)(2). Where the petition is untimely, the litigant bears the burden of pleading and proving in the petition that one of the exceptions to the one-year deadline for filing a PCRA petition applies. See Commonwealth v. Bretz, 830 A.2d 1273, 1275-76 (Pa. Super. 2003).

In the instant case, Keffer did not file a direct appeal from his judgment of sentence. As such, Keffer's judgment of sentence became final 30 days following the imposition of sentence when the time for filing a direct appeal expired, on April 6, 2011. See Pa.R.A.P. 903. To be considered timely, Keffer had until April 6, 2012, to file his PCRA petition. The petition was not filed until April 9, 2012 – three days late.

In his reply brief, Keffer argues that his PCRA petition is timely pursuant to the prisoner mailbox rule. "Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing." Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011). To support application of the mailbox rule, a prisoner bears the burden of proving delivery of the notice to prison authorities within the prescribed time period for its filing. See Commonwealth v. Jones, 549 Pa 58, 64, 700 A.2d 423, 426 (1997). Our review of the record reveals that there is no indication when Keffer delivered the petition to prison officials for delivery. The PCRA petition itself is not dated, and there is no dated envelope attached to the petition. Keffer attaches to his Reply Brief a photocopy of his Monthly Prisoner Account Statement that reflects a $2.63 debit on April 6, 2012, for "Postage First Class Mail." Even were we to assume that the first class postage was purchased for the PCRA petition, which the account statement does not indicate, we could not consider the photocopy of the statement as evidence because it does not appear in the certified record. It is well-established that "our review is limited to those facts which are contained in the certified record and what is not contained in the certified record does not exist for purposes of our review." Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2009) (internal quotes omitted). Because the account statement is not included in the certified record, we are precluded from considering the attachment to as evidence of the timeliness of his petition.

As we have no evidence of record that Keffer delivered his PCRA petition to prison officials within the timeline prescribed by the PCRA, we are constrained to determine that his PCRA petition is untimely. As such, the PCRA court lacked jurisdiction to review Keffer's petition unless he pled and proved in his petition that one of the § 9545(b)(1) statutory exceptions was applicable. He does not. Accordingly, we find no error in the PCRA court's dismissal of Keffer's petition as untimely filed.

We note that, even were we to find Keffer's petition was timely filed, we have reviewed the issues he raises on appeal and would have found them to be meritless.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.


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