J-S32030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRIAN COLON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 533 MDA 2023

Appeal from the PCRA Order Entered March 23, 2023

In the Court of Common Pleas of Dauphin County Criminal Division at 

No(s): CP-22-CR-0002699-2019, 

CP-22-CR-0002865-2019, CP-22-CR-0003310-2018

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: NOVEMBER 6, 2023

Brian Colon appeals pro se from the order denying his untimely-filed 

petition pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 

9541-46. We affirm.

The pertinent facts and procedural history may be summarized as 

follows: On April 8, 2021, Colon entered a negotiated guilty plea to multiple 

offenses at three separate dockets in return for an aggregate sentence of 

three to six years of imprisonment and a consecutive two-year probationary 

term. That same day the trial court imposed this sentence on Colon. He filed 

neither post-sentence motions nor a direct appeal.

On December 23, 2022, Colon filed a pro se document entitled a “Motion 

for Nunc Pro Tunc § 9543(a)(2)(iii) PCRA.” Treating this filing as a PCRA 

petition, the PCRA court appointed counsel. After being granted a time 
J-S32030-23

- 2 -

extension, PCRA counsel submitted a “no-merit” letter and a motion to 

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) 

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

On March 16, 2023, the PCRA court granted counsel’s motion to 

withdraw. The court also filed a Pa.R.A.P. 907 notice of its intent to dismiss 

Colon’s petition without a hearing, because it was untimely filed and Colon 

failed to establish a time-bar exception. Colon filed a pro se response. By 

order entered March 23, 2023, the PCRA court dismissed Colon’s petition. This 

appeal followed.1 The PCRA court did not require Pa.R.A.P. 1925 compliance.

Colon raises the following two issues on appeal:

Whether the actions, and judgment exercised by the PCRA 

court misapplied the law and were manifestly unreasonable, which 

is therefore an abuse of discretion and legal error of law in 

violation of Rules of Criminal Procedure 907 and Rules of Criminal 

Procedure 590?

Whether the actions, and judgment exercised by the PCRA 

court misapplied the law and were manifestly unreasonable, which 

is therefore and abuse of discretion and legal error of law in 

violation of Rules of Juvenile Court Procedure 622?

See Colon’s Brief at 4.

____________________________________________

1 Contrary to the express language of newly amended Pa.R.A.P. 902, Colon 

did not file a separate notice of appeal “in each docket in which the order has 

been entered.” Rule 902(a). Because this defect does not affect the validity 

of this appeal, we have the discretion to take whatever action we deem 

appropriate, including “a remand of the matter to the trial court so that the 

omitted procedural step may be taken.” Id. As Colon’s PCRA petition is 

untimely, see infra, we choose to overlook this procedural defect.
J-S32030-23

- 3 -

Before addressing Colon’s substantive claims, however, we must first 

determine whether the PCRA court correctly concluded that Colon’s PCRA 

petition was untimely filed, and that he failed to establish an exception to the 

time bar.

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date the judgment 

becomes final unless the petition alleges, and the petitioner proves, that an 

exception to the time bar is met.

The three narrow statutory exceptions to the one-year time bar are as 

follows: “(1) interference by government officials in the presentation of the 

claim; (2) newly discovered facts; and (3) an after-recognized constitutional 

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012) 

(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s 

time bar must be pled in the petition and may not be raised for the first time 

on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 

2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the 

lower court are waived and cannot be raised for the first time on appeal). 

Moreover, a PCRA petitioner must file his petition “within one year of date the 

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Finally, if a PCRA petition is untimely and the petitioner has not pled and 

proven an exception “neither this Court nor the [PCRA] court has jurisdiction 
J-S32030-23

- 4 -

over the petition. Without jurisdiction, we simply do not have the legal 

authority to address the substantive claims.” Commonwealth v. 

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Colon’s judgment of sentence became final on May 10, 2023, 

thirty days after the time for filing an appeal to this Court expired.2 See 42 

Pa.C.S.A. § 9545(b)(3). Therefore, Colon had until May 10, 2022, to file a 

timely petition. Because Colon filed the petition at issue in December 2022, 

it is untimely unless he has satisfied his burden of pleading and proving that 

one of the enumerated exceptions applies. See Hernandez, supra.

Our review of Colon’s PCRA petition reveals that he failed to plead or 

prove the applicability of any of the PCRA’s timeliness exceptions. Therefore,

his petition is untimely, and this Court, like the PCRA court, is without 

jurisdiction to consider the merits of this appeal. Derrickson, supra. 

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/06/2023

____________________________________________

2 Because the thirtieth day following the imposition of sentence fell on a 

Saturday, Colon had until the following Monday to file a timely appeal. See 

generally 1 Pa.C.S.A. § 1908.