J-S48011-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

RICHARD ALAN DELP, SR. 

 Appellant No. 1225 WDA 2015 

Appeal from the PCRA Order July 27, 2015 

In the Court of Common Pleas of Armstrong County 

Criminal Division at No(s): CP-03-CR-0000105-1999 

CP-03-CR-0000106-1999 

CP-03-CR-0000107-1999 

CP-03-CR-0000108-1999 

CP-03-CR-0000712-1998 

BEFORE: BOWES, DUBOW AND MUSMANNO, JJ. 

MEMORANDUM BY BOWES, J: FILED JUNE 24, 2016 

 Richard Alan Delp, Sr., appeals from the order entered July 27, 2015, 

dismissing his PCRA petition as untimely. We affirm. 

 This Court previously summarized the relevant history. 

In 2001, [Appellant] was convicted of [eight counts of 

involuntary sexual intercourse, four counts of aggravated 

indecent assault, four counts of indecent assault, two counts of 

terroristic threats, three counts of corruption of minors, and two 

counts of rape] and sentenced to 60 to 144 years of

incarceration. This Court affirmed his judgment of sentence in 

March 2002 and the Pennsylvania Supreme court denied his 

petition for allowance of appeal in January 2004. 

No further action occurred until June 2008, when [Appellant] 

filed a petition pro se with the trial court, in which he argued 

that the trial court erred in imposing his sentence because it 
J-S48011-16 

- 2 - 

failed to merge certain offenses. Motion to Modify and Reduce 

Sentence, 6/19/08. Recognizing that this claim challenges the 

legality of [Appellant’s] sentence, the trial court treated the filing 

as a PCRA petition and issued a Pa.R.Crim.P. 907 notice of intent 

to dismiss based upon its conclusion that the petition was 

untimely. [Appellant] filed a pro se response to the Rule 907 

notice, claiming that his trial counsel failed to communicate with 

him and that he did not discover until May 2008 that his direct 

appeal efforts had concluded. On November 10, 2008, the trial 

court dismissed [Appellant’s] petition. In the memorandum filed 

contemporaneously with the dismissal, the trial court explained 

that [Appellant’s] petition was untimely, that “it is obvious that 

none of the exceptions [to the PCRA's timeliness requirements] 

is even remotely applicable,” and that [Appellant] failed to 

“assert due diligence in discovering the denial of his appeals.” 

Trial Court Opinion, 11/10/08, at 3; Addendum to Memorandum 

and Order, 11/10/08, at 1. 

 

Commonwealth v. Delp, 108 A.3d 117 (Pa.Super. 2014) (unpublished 

memoranda at 1-2). We vacated the trial court’s order denying Appellant’s 

first petition and remanded the case for the appointment of PCRA counsel 

and the filing of a counseled petition. Counsel was appointed, and he filed 

an amended petition. 

After conducting a hearing on the matter, the trial court again 

dismissed the PCRA petition as untimely on November 27, 2015. This timely 

appeal followed. Appellant presents one issue for our consideration. 

I. Where a Defendant’s Court Appointed trial counsel abandons 

the defendant by way of failing to communicate with the 

defendant after sentencing such that the defendant has no 

knowledge regarding whether any appeals have been filed 

on his behalf or the status of any such appeals, and the lack 

of such knowledge causes the defendant to not know the 

time frame within which he must file a timely PCRA petition, 

did the PCRA court err in denying defendant’s PCRA petition 

as untimely? 
J-S48011-16 

- 3 - 

Appellant’s brief at 7. 

 We note preliminarily that an untimely PCRA petition renders 

Pennsylvania courts without jurisdiction to afford relief. Commonwealth v. 

Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). “The question of whether a 

petition is timely raises a question of law. Where the petitioner raises 

questions of law, our standard of review is de novo and our scope of review 

plenary.” Id. (citations omitted). 

 The PCRA specifies that all PCRA petitions must be filed within one 

year of the date on which the judgment of sentence became final, unless 

one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies. 

The petitioner bears the burden to plead and prove that a statutory 

exception applies. If the petition is found to be untimely, and the petitioner 

has not pled and proven an exception, the petition must be dismissed 

without a hearing because Pennsylvania courts are without jurisdiction to 

consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d 

516, 519 (Pa.Super. 2011) (citation omitted). 

 Title 42 Pa.C.S. § 9545 (b)(1) and (2) provide: 

(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 of sentence 

becomes final, unless the petition alleges and the 

petitioner proves that: 
J-S48011-16 

- 4 - 

 (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. 

(2) Any petition invoking an exception provided in 

paragraph (1) shall be filed within 60 days of the date the 

claim could have been presented. 

42 Pa.C.S. § 9545(b)(1) and (2). 

 Instantly, Appellant’s petition for allowance of appeal to the 

Pennsylvania Supreme Court was denied by order on January 22, 2004. 

Thus, his judgment of sentence became final on April 22, 2004, following the 

expiration of his ninety-day allowance to petition the United States Supreme 

Court for review. Appellant had until April 22, 2005 to file a timely PCRA 

petition. However, Appellant filed his PCRA petition on June 19, 2008, 

rendering his petition facially untimely unless he pleads and proves one of 

the three statutory exceptions detailed above. Appellant has not raised a 

claim of government interference or a newly recognized constitutional right, 
J-S48011-16 

- 5 - 

but rather relies solely on the fact that Appellant was not told about the 

conclusion of his direct appeal by prior counsel. 

Specifically, Appellant asserts that appellate counsel abandoned him 

by failing to communicate with him during the appeal process. Appellant’s 

brief at 14. Relying on this Court’s decision in Commonwealth v. Bennett, 

930 A.2d 1264 (Pa. 2007), Appellant maintains that attorney abandonment 

constitutes a factual basis for the exception outlined in § 9545(b)(1)(ii). 

Appellant’s brief at 13. Appellant acknowledges he became aware the status 

of his direct appeal through correspondence with the trial court received 

March 18, 2008. Id. at 14. Pursuant to Pa.C.S. § 9545(b)(2), Appellant 

had until May 19, 2008 to invoke this exception to the statutory timebar.1 

As he filed his PCRA petition on June 19, 2008,2 he cannot satisfy the 

threshold requirement of § 9545(b)(2). 

Thus, the PCRA court properly concluded that the petition was 

untimely. 

Order affirmed. 

____________________________________________ 

1

 We observe that since the sixty day time period enumerated in 42 Pa.C.S. 

§ 9545(b)(2) following Appellant’s discovery of prior counsel’s actions falls 

on Saturday, May 17, 2008, Appellant had until Monday, May 19, 2008 to 

file his PCRA petition. See 1 Pa.C.S. § 1908. 

2

 Appellant does not assert that the prisoner mailbox rule rendered this 

petition timely. 
J-S48011-16 

- 6 - 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/24/2016