Com. v. Davalos, B. (memorandum)
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J-S08041-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. BRIAN KEITH DAVALOS, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2275 EDA 2012 Appeal from the PCRA Order entered on August 8, 2012 in the Court of Common Pleas of Montgomery County, Criminal Division, No. CP-46-CR-0007141-2005 BEFORE: FORD ELLIOTT, P.J.E., LAZARUS and MUSMANNO, JJ. MEMORANDUM MUSMANNO, J.: FILED MAY 16, 2013 Brian Keith Davalos ( Davalos ), pro se, appeals from the Order denying his second Petition for relief filed pursuant to the Post-Conviction Relief Act ( PCRA ).1 We affirm. The PCRA court set forth the extended history of the instant appeal in its Opinion filed on September 7, 2012, which we adopt for the purpose of this appeal. See PCRA Court Opinion, 9/7/12, at 1-3. Of particular note, on May 18, 2012, Davalos filed a Petition for writ of habeas corpus. Treating Davalos s Petition as a petition for relief filed pursuant to the PCRA, on June 7, 2012, the PCRA court issued Notice of its intent to dismiss the Petition without a hearing. Specifically, the PCRA court concluded that Davalos s Petition was time-barred. Davalos filed a response to the Notice. On July 1 42 Pa.C.S.A. §§ 9541-9546. J-S08041-13 10, 2012, the PCRA court entered an Order dismissing Davalos s PCRA Petition. Although Davalos purportedly filed an appeal of the dismissal of his PCRA Petition before entry of the PCRA court s final Order, we will overlook the procedural misstep, as a final Order now has been entered. Davalos presents four claims for our review. However, before addressing these claims, we first must determine whether Davalos s PCRA Petition was timely filed. An appellate court s standard of review regarding an order denying a PCRA petition is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Kretchmar, 971 A.2d 1249, 1251 (Pa. Super. 2009). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Treadwell, 911 A.2d 987, 989 (Pa. Super. 2006). A PCRA petition must be filed within one year of the date the petitioner s judgment of sentence became final. 42 Pa.C.S.A. § 9545(b)(3). The one-year time limitation is jurisdictional and a trial court has no power to address the substantive merits of an untimely filed petition. Commonwealth v. Abu-Jamal, 833 A.2d 719, 723-24 (Pa. 2003); Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). The three exceptions to the one-year filing requirement are for newly discovered facts, interference by a government official, and a newly recognized -2- J-S08041-13 constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The newly recognized constitutional right exception requires that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States ¦ after the time period provided in this section and has been held by the court to apply retroactively. Id. § 9545(b)(1)(iii). In his appellate brief, Davalos asserts claims of ineffective assistance of prior counsel and argues that a habeas corpus court may excuse a procedural default of an ineffective assistance claim. Brief for Appellant at 8. Davalos argues that his claim was not properly presented in state court, and contends that his counsel was ineffective for not challenging his arraignment and the sufficiency of the criminal information filed against him. Id. at 9-10. Davalos also generically asserts that the Commonwealth failed to provide exculpatory evidence to him. Id. at 11. However, Davalos fails to present any argument establishing an exception to the PCRA s timeliness requirement. Our review of the record discloses that in its Opinion, the PCRA court discussed the PCRA s timeliness requirement and correctly determined that Davalos s Petition was not timely filed. PCRA Court Opinion, 9/7/12, at 6-7. We therefore affirm on the basis of the PCRA court s Opinion with regard to the claims raised by Davalos. See id. Order affirmed. -3- J-S08041-13 Judgment Entered. Prothonotary Date: 5/16/2013 -4-
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