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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DAVID G. LUDWIG Appellant No. 1075 MDA 2016

Appeal from the PCRA Order Dated May 19 , 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP

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- CR

- 0005841

- 2005

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J. * MEMORANDUM BY SOLANO, J.: FILED JANUARY 13, 2017 Appellant David G. Ludwig appeals from the order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

– 9546. The PCRA court found the petition untimely an d therefore not within its jurisdiction. We affirm. On June 14, 2006, Appellant entered a negotiated guilty plea to two counts of first

- degree murder and one count each of statutory sexual assault, carrying firearms without a license, and recklessly endan gering another person. 1 At the time of the crimes, Appellant was 181⁄2 years old. The trial court sentenced Appellant to two consecutive mandatory terms of

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(a), 3122.1, 6106(a)(1), and 2705, respectively.J

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life imprisonment for the first

- degree murder convictions pursuant to 18 Pa.C.S. § 1102(a)(1), and a consecutive term of nine

- and

- one - half to nineteen years’ imprisonment for the remaining charges. PCRA Ct. Op., 5/19/16, at 1

- 3. Appellant did not file a direct appeal. On August 17, 2012, Appellant, pro se , filed his first petition for post

conviction relief. Counsel was appointed, and, concluding that the petition was untimely, filed a “no merit” letter pursuant to Commonwealth v.
Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). The PCRA court di smissed Appellant’s first petition as untimely on October 16, 2012. This Court affirmed the denial of Appellant’s first petition, Commonwealth v. Ludwig , No. 1999 MDA 2012 (Pa. Super., July 10, 2013) (unpublished memorandum), and the Supreme Court of Penn sylvania denied allocatur , No. 674 MAL 2013 (Pa., Jan. 7, 2014). On March 24, 2016, Ludwig filed the instant PCRA petition, his second,
pro se. On April 6, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss this petition on the basis that it was untimely and Appellant had failed to plead any exception to the PCRA’s time bar. On May 6, 2016, Appellant filed a pro se response, stating, among other things, that his petition was time ly, and invoking the exceptions to the PCRA’s time bar that are set forth at 42 Pa.C.S. § 9545(b)(ii) and (iii). By an order entered May 19, 2016, the PCRA court dismissed Appellant’s petition as untimely.J

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Appellant then mailed to this Court a notice of appeal that is dated June 16, 2016. On appeal, Appellant raises the following issues, as stated in his brief: Is Appellant, according to the Pa. Constitution, common law definitions, and case law a minor and therefore fits into the subclass of those def ined as a juvenile entitling him to the same protections afforded his minor counterparts in recent U.S. Supreme Court decisions, specifically “Montgomery v. Louisiana” finding “Miller v. Alabama” to be retroactive[?] Did Appellant suffer ineffective assis tance of trial counsel where counsel failed to utilize scientific evidence readily available to demonstrate Appellant[’s] diminished capacity? The defendant’s 6 th and 14 th Amendment rights were violated at the sentencing phase rendering the plea null and void. Did the Appellant have a diminished culpability to negate [ mens ] rea ? Did the Commonwealth create 2 separate classes prohibiting 18

- 25 year olds from utilizing scientific evidence relied upon in Montgomery/Miller and denying them equal protection and due process of the law? As a new substantive rule of constitutional law barring certain mandatory minim ums, it is unlawful to withhold the application of Alleyne v. United States , 133 S.Ct. 215[1] (2013) to Appellant’s mandatory minimum life imprisonment sentence and it’s “without parole.” Appellant’s Brief at 6. This Court’s Jurisdiction Before we address Appellant’s issues, we must determine whether Appellant timely filed his notice of appeal. Although neither party raises thisJ

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issue, we address it sua sponte because it implicates our jurisdiction. Commonwealth v. Cooper , 710 A.2d 76, 78 (Pa. Super. 19 98). In order for this Court to have jurisdiction, Appellant’s notice of appeal must have been filed within thirty days of the PCRA court’s order. See Pa.R.A.P. 903(a) (time for filing appeal); Cooper , 710 A.2d at 78 (court lacks jurisdiction if notice of appeal is not timely filed). Under the “prisoner mailbox rule,” a pro se prisoner’s notice of appeal is deemed filed “on the date that the appellant deposits the appeal with prison authorities and/or places it in the prison mailbox.” Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997). Where the facts concerning the timeliness of a notice of appeal are in dispute, a remand for an evidentiary hearing may be
necessary. Id. at 426 n.3. “Where, however, the opposing party does not challenge the timelin ess of the appeal and the prisoner’s assertion of timeliness is plausible, we may find the appeal timely without remand.” Cooper , 710 A.2d at 79 (citing Jones , 700 A.2d at 426 n.3).
In Cooper , the proof of service for the notice of appeal stated that th e notice was timely filed, and the court received the notice two days after the thirty

- day period expired. Cooper , 710 A.2d at 79. Further, neither party raised the issue of the timeliness of the appeal. Id. This Court held that under those circumstanc es, there was “plausible” evidence that the notice was timely, and we therefore could address the merits of the appeal. Id. ; see also Commonwealth v. Patterson , 931 A.2d 710, 714 (Pa. Super.J

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2007) (deeming appeal timely based on date on notice of appeal a nd fact that court received it three days after thirty

- day period expired). In this case, the PCRA court’s order dismissing Appellant’s petition was docketed on May 19, 2016. Because the 30th day fell on Saturday, June 18, 2016, Appellant had until Monda y, June 20, 2016, to file a timely notice of appeal. See 1 Pa.C.S. § 1908 (“Whenever the last day of any [period of time referred to in any statute] shall fall on Saturday or Sunday . . . such day shall be omitted from the computation”). The trial court docket says that Appellant’s notice of appeal was filed on June 27, 2016, seven days late. However, the Commonwealth does not challenge the timeliness of this appeal. 2 The certificate of service that accompanied the notice of appeal is dated June 16, 201 6, which is well within the 30

- day filing period. Appellant mailed the notice to this Court, rather than the trial court, and it was date

- stamped by this Court on June 23, 2016, just three days after the thirty

- day period had expired. Under these circums tances, we hold that there is “plausible” evidence that Appellant timely mailed his notice of appeal. See Cooper , 710 A.2d at 79. The fact that Appellant mailed the notice of appeal to this Court, rather than to the trial court, does not deprive this Cour t of jurisdiction. Appellate Rule 905(a)(4) provides: “If a notice of appeal is mistakenly filed in an

____________________________________________ 2 Rather than filing a brief, the Commonwealth opted to rely upon the PCRA court’s opinion. See Letter, 10/6/16.J

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appellate court, . . . the clerk shall immediately stamp it with the date of receipt and transmit it to the clerk of the court which entered the order appealed from, and upon payment of an additional filing fee the notice of appeal shall be deemed filed in the trial court on the date originally filed.” 3 The sequence of events mandated by this rule explains why the notice of appeal was not filed in the t rial court until June 27, 2016. We therefore consider Appellant’s notice of appeal timely filed and will address the merits of his appeal. The Timeliness of Appellant’s PCRA Petition The PCRA court dismissed Appellant’s petition as untimely. This Court’s standard of review regarding an order dismissing a petition under the PCRA is “to determine whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court’s findings will not be disturbed unl ess there is no support for the findings in the certified record.” Commonwealth v. Barndt , 74 A.3d 185, 191

- 92 (Pa. Super. 2013) (citations and internal quotation marks omitted). The timeliness of a post

- conviction petition is jurisdictional. Commonwealt

h 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

____________________________________________ 3 Appellant was granted permission to proceed in forma pauperis. Thus, he wa s not required to pay the filing fee.J

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of sentence is final, unless the petition alleges and th e petitioner proves one of the three exceptions to the time limitations for filing the petition set forth in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b). 4 We have reviewed Appellant’s brief, the certified record, the relevant law, and the op inion of the able PCRA court judge, the Honorable David L. Ashworth. We discern no error in this case and conclude that Judge Ashworth’s opinion, entered on May 19, 2016, ably addressed the untimeliness of Appellant’s PCRA petition. See Barndt , 74 A.3d 18 5, 191

- 92. Therefore, we affirm on the basis of Judge Ashworth’s well

- reasoned opinion and adopt it as our own. In the event of further proceedings, the parties shall attach a copy of the PCRA court’s May 19, 2016 opinion to this memorandum.

____________________________________________ 4 The three exceptions to the timeliness requirement are: (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 Con stitution 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. 42 Pa.C.S. § 9545(b)(1).J

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Order affirm ed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/13/2017Circulated 12/20/2016 10:38 AM