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[U] Commonwealth v. Rowland

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LEE J. ROWLAND, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of May 22, 2013 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004755-2008

BEFORE: MUNDY, OLSON and STABILE, JJ.

MEMORANDUM

OLSON, J.

Appellant, Lee J. Rowland, appeals pro se from the order entered on May 22, 2013, dismissing as untimely his second petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546. We affirm.

We briefly summarize the facts and procedural history of this case as follows. On September 3, 2008, using a confidential informant, police initiated a controlled narcotics purchase from Appellant at his auto mechanic shop in Harrisburg, Pennsylvania. The informant purchased $100.00 of crack cocaine from Appellant using marked currency. Following the purchase, police obtained a search warrant of Appellant's shop and recovered 46.7 grams of crack cocaine, a digital scale and plastic sandwich bags from a file cabinet in Appellant's office. Police also obtained $2, 098.00 in cash from Appellant's person that included the marked currency used in the prior controlled purchase. On January 14, 2010, a jury convicted Appellant of possession with intent to deliver a controlled substance.[1] On March 29, 2010, the trial court sentenced Appellant to five to 10 years of imprisonment. Appellant did not file a direct appeal.

On January 10, 2011, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel who filed a supplemental PCRA petition. PCRA counsel petitioned to withdraw and the PCRA court granted the request. The PCRA court dismissed Appellant's first PCRA petition on May 11, 2011. Appellant appealed to this Court and we dismissed the appeal on October 20, 2011 by per curiam order for failure to file an appellate brief. On August 7, 2012, our Supreme Court denied Appellant's petition for allowance of appeal.

On April 15, 2013, Appellant filed a second pro se PCRA petition. On April 29, 2013, the PCRA court entered a notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim. 907.[2] On May 22, 2013, the PCRA court denied relief on Appellant's second PCRA petition. That same day, the PCRA court received a pro se Rule 907 response from Appellant. The PCRA court dismissed the response as untimely by order dated May 28, 2013. This timely appeal followed.[3]

On appeal, Appellant presents the following issues for our review:

a) Whether this [] Court should remand the matter back to the [PCRA] court under extraordinary circumstances to afford Appellant an opportunity to file an amended PCRA petition with applicable statutory exceptions based on newly discovered evidence showing, [his] trial resulted in a[] conviction that w[as] so unfair that a miscarriage of justice occurred while Appellant is actual[ly] innocent of the crime charge[d] which no civilized society could tolerate, vacating the lower court[']s orders?
b) [Whether the] May 22, 2013 [order] is in error dismissing the Post Conviction petition 17 days after its reception without a hearing and without affording Appellant an opportunity to file an amended PCRA petition to include two if not three of the statutory exceptions for filing within the sixt[y] (60) [day] time frame, and invoking trial and prior counsel's inadequate and ineffective assistance when the court did not order that it lack[ed] jurisdiction?
c) [Whether the] May 28, 2013 [order] is in error when [the PCRA court] failed to consider Appellant's May 17, 2013 response in opposition to [the] court[']s intent to dismiss along with his PCRA petition, which are supported by mailing receipt and SCI-Rockview inmate financial statement deduction when said response not only was placed in the mailbox within the prescribed period, but also was filed six (6) days prior to the court issuing its final dismissal order May 22, 2013.
d) [Whether the PCRA court] erred in dismissing this matter, while covering its own error when it invoked the power and discretion of the prosecution on its own incentive to pick what sentence should be imposed upon [] Appellant, in which such obligation is rest[ed] with and are only permissible as a duty under the constitution to the prosecution itself, rendering the imposed sentence illegal.
e) [Whether the PCRA court] erred in dismissing the matter where [the] imposition of [his] conviction and sentence is based on [the] drug laboratory report [specifying the amount is] contrary to and in violation ...

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