J-S40012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JASON LOZADA

Appellant No. 3184 EDA 2015

Appeal from the PCRA Order September 11, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1107211-2004

BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 20, 2016

Jason Lozada appeals1 pro se from the September 11, 2015 order 

dismissing his PCRA petition as untimely filed. We affirm. 

In 2004, Appellant was charged with rape of a child, aggravated 

indecent assault, statutory sexual assault, corruption of a minor, indecent 

assault, indecent exposure, simple assault, and reckless endangerment. On 

September 28, 2004, Appellant placed his penis and fingers inside the 

vagina of an eleven-year-old child. On January 23, 2007, after a jury was 

empaneled, Appellant elected to enter a negotiated guilty plea to rape by 

____________________________________________

1 We note that Appellant’s notice of appeal was mailed from prison on 

October 6, 2015, and is considered timely under the prisoner mailbox rule. 

Commonwealth v. Jones, 700 A.2d 423 (Pa. 1997); Smith v. 

Pennsylvania Board of Probation and Parole, 683 A.2d 278 (Pa. 1996). 
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forcible compulsion and corrupting a minor in exchange for a total term of 

imprisonment of eight and one-half to twenty years. The negotiated 

sentence was imposed that same day, and Appellant did not file a notice of 

appeal. 

On October 24, 2014, Appellant filed a pro se PCRA petition. Counsel 

was appointed, and, on July 2, 2015, petitioned to withdraw and filed a nomerit 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). Counsel, in his extensive no-merit letter, concluded that the October 

24, 2014 PCRA petition was untimely. The PCRA court sent notice of its 

intent to dismiss the petition without a hearing, and, on September 11, 

2015, dismissed it as untimely and permitted counsel to withdraw. This pro 

se appeal followed. Appellant presents these issues for our review: 

I. Whether the PCRA court erred as a matter of law and/or 

abused its discretion in allowing PCRA counsel to withdraw?

II. Whether the PCRA court erred as a matter of law and/or 

abused its discretion in dismissing Appellant's PCRA as untimely 

filed and/or failing to fall under the exception provisions of 42 

PA.C.S. §9545(b)(1)(i)- (iii)?

III. Whether the PCRA Court erred as a matter of law and/or 

abused its discretion in dismissing without a hearing or 

otherwise granting Appellant relief on his claim that he was 

denied the effective assistance of counsel where his trial counsel 

erroneously advised him that, notwithstanding his plea of guilty, 

he would still be able to seek direct appellate review of the trial 

court's denial of his counseled motion to dismiss pursuant to 

Pa.R.Crim.P. 600?
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Appellant’s brief at 3. 

We first outline our standard of review:

Under the applicable standard of review, we must 

determine whether the ruling of the PCRA court is supported by 

the record and is free of legal error. Commonwealth v. 

Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008). The PCRA 

court's credibility determinations, when supported by the record, 

are binding on this Court. Commonwealth v. Johnson, 600 Pa. 

329, 966 A.2d 523, 532, 539 (2009). However, this Court 

applies a de novo standard of review to the PCRA court's legal 

conclusions. Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 

790, 810 (2007).

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). Accord 

Commonwealth v. Bardo, 105 A.3d 678, 685 (Pa. 2014) (“If supported by 

the record, the PCRA court's credibility determinations and factual findings 

are binding on this Court; however, we apply a de novo standard of review 

to the PCRA court's legal conclusions.”). 

Before we can address the merits of any of Appellant’s positions, we 

must determine whether Appellant’s October 24, 2014 PCRA petition was 

timely filed as that issue implicates our jurisdiction. Commonwealth v. 

Miller, 102 A.3d 988 (Pa.Super. 2014). If a PCRA petition is untimely, 

“neither this Court nor the trial court has jurisdiction over the petition.” Id. 

at 992 (citation omitted); see Commonwealth v. Chester, 895 A.2d 520, 

522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the 

trial court has jurisdiction over the petition. Without jurisdiction, we simply 

do not have the legal authority to address the substantive claims.”). 
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Any PCRA petition has to be filed within one year of the date the 

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). Accordingly, we first must 

determine when Appellant’s judgment of sentence became final. “A 

judgment becomes final at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking the 

review.” 42 Pa.C.S. § 9545(b)(3). In this case, since Appellant did not file a 

direct appeal from his January 23, 2007 judgment of sentence, that 

sentence became final thirty days later, or on February 22, 2007. Appellant 

had until February 22, 2008, to file a timely PCRA petition, and his October 

24, 2014 petition is patently untimely. There are three exceptions to the 

one-year time bar of § 9545:

(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.
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42 Pa.C.S. § 9545(b)(1)(i-iii). “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)(2).

Appellant’s first position is that the no-merit letter filed by PCRA 

counsel was deficient in that it did not address his claims of ineffective 

assistance of plea counsel. Our review of the no-merit letter indicates that 

PCRA counsel outlined why the PCRA petition in question was untimely. 

Since the petition was untimely, none of Appellant’s positions could be 

addressed on the merits. Hence, we reject Appellant’s claim that the nomerit letter was faulty. 

Appellant next avers that he filed a PCRA petition on April 30, 2007. 

He asserts that the clerk of courts should have docketed and processed that 

petition, and he invokes the governmental interference exception to the oneyear time bar. We have reviewed the contents of the certified record. The 

record contains a petition for PCRA relief that was marked as received by the 

clerk of courts on October 24, 2014. That petition is Appellant’s first filed 

petition and was entered on the docket the same date that it was received 

by the clerk of courts. 

Attached as an exhibit to this filed October 24, 2014 PCRA petition is a 

copy of a document captioned as a petition for post-conviction relief. That 

copy was marked as received by the PCRA unit of the Philadelphia District 

Attorney’s Office on April 30, 2007. The record does not contain a copy of a 
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post-conviction petition marked as received by the clerk of courts on April 

30, 2007. Concomitantly, there is no docket entry indicating that a PCRA 

petition was filed on April 30, 2007. The clerk of courts committed no 

administrative error herein because there is no proof that the office received 

a PCRA petition in 2007 to docket and process. Accordingly, the 

governmental interference exception is inapplicable. 

Simply put, Appellant did not file a petition seeking PCRA relief in 

2007; he merely mailed one to the district attorney’s office. Appellant 

provides no support for the proposition that the district attorney’s office had 

a duty to ascertain if Appellant also properly filed the petition with the clerk 

of courts and, if not, to file it on his behalf. Since Appellant did not file a 

timely PCRA petition, we have no jurisdiction to entertain the merits of his 

third position, which pertains to plea counsel’s ineffective assistance. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2016