Com. v. Powell (judgment order)
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J-S04031-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. OMAR POWELL Appellant No. 1706 EDA 2012 Appeal from the PCRA Order May 16, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000303-2000 BEFORE: STEVENS, P.J., GANTMAN, J., and LAZARUS, J. JUDGMENT ORDER BY LAZARUS, J. Filed: January 31, 2013 AND NOW, this --- day of January, 2013, the order of the Court of Common Pleas of Lehigh County dismissing Omar Powell s petition filed under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-46 ( PCRA ), is hereby AFFIRMED. A PCRA petition, including a second or subsequent petition, must be filed within one year of the date the underlying judgment of sentence becomes final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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 review. 42 Pa.C.S.A. § 9545(b)(3); see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Powell s judgment of sentence J-S04031-13 became final on October 3, 2002, when his time for filing a direct appeal had expired. Thus, he had one year from that date, or until October 3, 2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b). He did not file the instant petition until January 17, 2012, more than eight years late. Accordingly, the PCRA court had no jurisdiction to entertain Powell s petition unless he pleaded and offered to prove one of the three statutory exceptions to the time bar. See 42 Pa.C.S.A. § 9545(b). Powell failed to do so. Additionally, Powell is no longer serving his sentence,1 a requirement for eligibility for PCRA relief pursuant to 42 Pa.C.S.A. § 9543(a)(1)(i). ____________________________________________ 1 The court sentenced Powell on September 3, 2002, to time served to 24 months incarceration, less one day, to be followed by a consecutive term of 24 months probation. -2-
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