J-S87016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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-36-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 and 

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 endangering 

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.
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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 postconviction 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 dismissed 

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 Super., July 10, 2013) (unpublished 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 Pennsylvania 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 timely, 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. 
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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 defined 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 assistance of trial counsel where 

counsel failed to utilize scientific evidence readily available to 

demonstrate Appellant[’s] diminished capacity?

The defendant’s 6th and 14th 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 minimums, 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 this 
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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. 1998). 

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 timeliness 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 the 

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 circumstances, 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. 
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2007) (deeming appeal timely based on date on notice of appeal and 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 Monday, 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, 2016, 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 circumstances, 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 Court of jurisdiction. Appellate 

Rule 905(a)(4) provides: “If a notice of appeal is mistakenly filed in an 

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2 Rather than filing a brief, the Commonwealth opted to rely upon the PCRA 

court’s opinion. See Letter, 10/6/16.
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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 trial 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 unless 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. 

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 

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3 Appellant was granted permission to proceed in forma pauperis. Thus, he 

was not required to pay the filing fee.
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of sentence is final, unless the petition alleges and the 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 opinion 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 185, 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.

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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 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.

42 Pa.C.S. § 9545(b)(1).
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

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