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HomeMy WebLinkAbout99-2033 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA MICHAEL LEWIS 99-2033 CRIMINAL TERM IN RE: PETITION UNDER POST CONVICTION RELIEF ACT BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., December 18, 2002. For disposition in this criminal case, in which Defendant was found guilty of robbery and related offenses, is a petition under the Post Conviction Relief Act. A hearing was held on the petition on December 11, 2002, and December 17, 2002. For the reasons stated in this opinion, the petition will be dismissed as untimely. STATEMENT OF FACTS As the result of an incident occurring on September 5, 1999, Defendant was ultimately found guilty of robbery, criminal conspiracy to commit robbery, carrying a firearm without a license, aggravated assault, and recklessly endangering another person. He was sentenced on June 22, 2000.~ The judgment of sentence was affirmed by the Pennsylvania Superior Court on a direct appeal, on March 20, 2001.2 No petition for allowance of appeal to the Pennsylvania Supreme Court was filed by Defendant. On May 6, 2002, Defendant filed the petition for relief under the Post Conviction Relief Act which is the subject of this opinion. In response to the Commonwealth's motion to dismiss the petition as untimely, Defendant testified ~ The aggregate sentence imposed was the mandatory minimum sentence applicable to the offense of robbery committed with a firearm. : Commonwealth v. Lewis, Memorandum Opinion, No. 1411 MDA 2000 (Pa. Super. Ct. March 20, 200~). at the hearing on the petition that he was under the impression that the one-year period for filing the petition did not commence until 90 days after the Superior Court's decision. DISCUSSION Under Section 9545(b) of the Judicial Code,3 a petition under the Post Conviction Relief Act must, subject to certain exceptions, be filed within one year of the date that a defendant's judgment of sentence becomes final. This provision reads as follows: (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.4 Where a judgment of sentence is affirmed by the Pennsylvania Superior Court, and no petition for allowance of appeal is filed to the Pennsylvania Supreme Court, the judgment of sentence becomes final 30 days after the decision Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9545(b). 4Id. 2 of the Superior Court. Commonweal& v. Hutchins, 760 A.2d 50, 54 (Pa. Super. Ct. 2000). In the absence of applicability of one of the statutory exceptions related above, a trial court does not have jurisdiction to adjudicate a petition filed beyond the one-year period. Id at 55. In the present case, Defendant's petition was filed beyond the statutory one- year period. None of the exceptions enumerated in the Post Conviction Relief Act to the requirement that the petition be filed within that period has been shown to be applicable. Accordingly, this court lacks jurisdiction to entertain the petition and the following order must be entered: ORDER OF COURT AND NOW, this 18th day of December, 2002, upon consideration of Defendant's petition under the Post Conviction Relief Act, and of the Commonwealth's motion to dismiss the petition as untimely, the Commonwealth's motion is granted and the petition is dismissed. NOTICE is hereby given of Defendant's right to appeal from this disposition of the petition to the Pennsylvania Superior Court within 30 days of the date of this order. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney James K. Jones, Esq. Court-Appointed Attorney for Defendant/Petitioner s/ J. Wesley Oler., Jr. J. Wesley Oler, Jr., J. 3 Michael Lewis, EG-9375 1600 Walters Mill Road Somerset, PA 15510 Defendant CERTIFIED MAIL 4 5 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo MICHAEL LEWIS 99-2033 CRIMINAL TERM IN RE: PETITION UNDER POST CONVICTION RELIEF ACT BEFORE OLER, J. ORDER OF COURT AND NOW, this 18th day of December, 2002, upon consideration of Defendant's petition under the Post Conviction Relief Act, and of the Commonwealth's motion to dismiss the petition as untimely, the Commonwealth's motion is granted and the petition is dismissed. NOTICE is hereby given of Defendant's right to appeal from this disposition of the petition to the Pennsylvania Superior Court within 30 days of the date of this order. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney James K. Jones, Esq. Court-Appointed Attorney for Defendant/Petitioner Michael Lewis, EG-9375 1600 Walters Mill Road Somerset, PA 15510 Defendant CERTIFIED MAIL J. Wesley Oler, Jr., J.