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[U] Commonwealth v. Veltri

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC PATRICK VELTRI, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, January 9, 2013, in the Court of Common Pleas of Jefferson County Criminal Division at No. CP-33-CR-0000399-2008

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Eric Patrick Veltri appeals from the order of January 9, 2013, denying his PCRA[1] petition. We affirm.

The pertinent facts and procedural history may be summarized as follows: On March 21, 2008, Pennsylvania State Police Trooper Arnold E. Stutsman was dispatched to the scene of a two-vehicle crash in Jefferson County. One vehicle, a silver Ford F-150 pick-up truck, belonged to Appellant. The other vehicle, a red Honda Accord, belonged to Delora Burrow-Bradish. In the Honda Accord, Trooper Stutsman found Delora Burrow-Bradish seriously injured in the driver's seat, and two passengers, her sisters, Connie J. Bailey and Karen J. Peters, both dead. Appellant was found unconscious in his truck. From observations of the accident scene, Trooper Stutsman concluded that the Appellant's truck had been traveling on the wrong side of the road, into oncoming traffic, resulting in a virtual head-on collision. The truck's speedometer was stuck at a speed of 79 mph. The posted speed limit for the area was 45 mph. Appellant was taken to a hospital, where a blood alcohol test showed he had a blood alcohol level of .247 percent.
On December 16, 2009, Appellant entered a plea of guilty to two counts of homicide by vehicle while driving under the influence, and one count of aggravated assault by vehicle while driving under the influence. Following a hearing, the sentencing court, on December 21, 2009, sentenced Appellant to a period of incarceration of 58 months to 10 years for the first count of homicide by vehicle, a consecutive 58 months to 10 years for the second count of homicide by vehicle, and a consecutive 58 months to 10 years for aggravated assault by vehicle. Thus, Appellant received an aggregate sentence of 14½ years to 30 years imprisonment.

Commonwealth v. Veltri, 130 WDA 2010, unpublished memorandum at 1-2 (Pa.Super. filed February 24, 2011) (citation to the record omitted).

On February 24, 2011, this court affirmed the judgment of sentence; and on June 30, 2011, our supreme court denied appellant's petition for allowance of appeal. Commonwealth v. Veltri, 24 A.3d 464 (Pa.Super. 2011), appeal denied, 611 Pa. 633, 23 A.3d 1056 (2011). Appellant did not file a petition for writ of certiorari with the United States Supreme Court. On October 9, 2012, appellant filed a counseled PCRA petition. An evidentiary hearing was held on December 11, 2012, at which both appellant and trial counsel testified. Appellant's petition was denied on the merits on January 9, 2013, and this timely appeal followed.

It is well settled that the timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Burton, 936 A.2d 521, 527 (Pa.Super.2007). Where a petitioner fails to satisfy the timeliness requirements of the PCRA, the PCRA court and this Court have no jurisdiction to review the petition by fashioning an equitable exception to timeliness. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1163 (2003). The PCRA requires that any PCRA petition, including second or subsequent petitions, must be filed within one year of the date the judgment becomes final. Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super.2002); 42 Pa.C.S.A. § 9545(b)(1).

Commonwealth v. Turner, 73 A.3d 1283, 1285 (Pa.Super. 2013). "Because the timeliness implicates our jurisdiction, we may consider the matter sua sponte." Commonwealth v. Yarris, 557 Pa. 12, 24, 731 A.2d 581, 587 (1999), citing Commonwealth v. Saunders, 483 Pa. 29, 32 n.2, 394 A.2d 522, 524 n.2 (1978); Commonwealth v. Little, 455 Pa. 163, 167, 314 A.2d 270, 272 (1974).

Here, appellant's judgment of sentence became final on September 28, 2011, at the expiration of time for seeking review in the United States Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Rule 13, Rules of the United States Supreme Court. Thus, a timely PCRA petition had to be filed by September 28, 2012. On its face, then, appellant's present petition would appear to be untimely, as it was not filed until October 9, 2012.

Appellant does not argue that any of the time-of-filing exceptions to the PCRA's one-year time bar apply. Our supreme court has ruled that these exceptions must be specifically pleaded or they may not be invoked. Commonwealth v. Beasley, 559 Pa. 604, 609, 741 A.2d 1258, 1261 (1999). To invoke an exception, the petitioner must plead it explicitly and satisfy the burden of proof. Id.

In his PCRA petition, appellant claims that the petition is timely where our supreme court denied allowance of appeal on July 20, 2011. (PCRA petition, 10/9/12 at 3; docket #43.) Therefore, according to appellant, he had until October 18, 2012, to file a timely PCRA petition. (Id.) The source for this unfortunate misapprehension appears to be that while our supreme court denied allowance of appeal on June 30, 2011, a copy of the order was not filed with the Jefferson County clerk of courts until July 20, 2011. (Docket #40.) Nevertheless, the time period for filing a petition for writ of certiorari with the United States Supreme Court would begin running on June 30, 2011, the date on the Pennsylvania Supreme Court docket showing entry of disposition, not whenever the order happens to be received in the trial court. See U.S.Sup.Ct. Rule 13(1), 28 U.S.C.A. ("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."). The operative date here is June 30, 2011, when the order was entered denying appellant's petition for allowance of appeal. See Pa.R.A.P. 2521(a) ("Subject to the provisions of Rule 108 (date of entry of orders), the notation of a judgment or other order of an appellate court in the docket constitutes entry of the judgment or other order."). Ninety days after that date, September 28, 2011, appellant's judgment became final for PCRA purposes, and the one-year filing period commenced. As such, appellant's petition filed October 9, 2012, was untimely, and the PCRA court was without jurisdiction to consider it.

Order affirmed.

Judgment Entered.


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