J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY C. CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 306 MDA 2023
Appeal from the PCRA Order Entered September 16, 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000073

- 2005

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY C. CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 307 MDA 2023
Appeal from the PCRA Order Entered September 16, 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000075

- 2005

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY C. CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 308 MDA 2023
Appeal from the PCRA Order Entered September 16, 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000076

- 2005

COMMONWEALTH OF PENNSYLVANIA :
: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

- S32013

- 23

- 2

- v.

ZACHAURY C. CAPRIOTTI

Appellant :
:
:
:
:
:
: No. 309 MDA 2023
Appeal from the PCRA Order Entered September 16, 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000089

- 2005

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY CLAYTON CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 310 MDA 2023
Appeal from the PCRA Order Entered September 16 , 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000027

- 2006

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY CLAYTON CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 311 MDA 2023
Appeal from the PCRA Order Entered September 16, 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000028

- 2006

COMMONWEALTH OF PENNSYLVANIA

v. :
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIAJ

- S32013

- 23

- 3

-

ZACHAURY CAPRIOTTI

Appellant :
:
: No. 312 MDA 2023
Appeal from the PCRA Order Entered September 16 , 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000032

- 2006

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHAURY CLAYTON CAPRIOTTI

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 313 MDA 2023
Appeal from the PCRA Order Entered September 16 , 2022 In the Court of Common Pleas of Sullivan County Criminal Division at

No(s): CP

- 57

- CR

- 0000033

- 2006

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 20, 2023

Appellant Zachaury Clayton Capriotti 1 appeals from the September 1 6 ,
2022 Order of the Sullivan County Court of Common Pleas denying as untimely

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S

§§ 9541

- 4 6. After careful review, we affirm.

The relevant facts and procedural history are as follows. On August 3,

2006 , Appellant pled guilty to the following offenses: Burglary, Criminal

Conspiracy to Commit Burglary, Theft by Receiving Stolen Property , Possession of an Incendiary Device, The ft by Unlawful Taking, Obscene or

_________________ __________ ______ ____ _______

1 The record includes various spellings of Appellant’s first name. We utilize the spelling appearing on the trial court’s docket.J

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-

Other Sexual Materials, and Criminal Mischief. The court sentenced Appellant

to an aggregate term of 68

- 240 months of incarceration

. This Court affirmed

the Judgment of Sentence on August 2, 2007, and the Supreme Court denied

Appellant’s Petition for Allowance of Appeal on March 12, 2008. 2

On May 23, 2008, Appellant filed a timely pro se PCRA Petition , and the

PCRA court appointed counsel

. In his first PCRA petiti on , Appellant claimed

that “ his guilty plea had been unlawfully induced as a result of ineffective

assistance of counsel .” Commonwealth v. Capriotti , No. 2186 MDA 2008,

at 2 ( Pa. Super. filed Sept. 16, 2009) (citation omitted). Specifically , Appellant asserted that counsel should have sought to suppress his

confession , claiming that the investigating state troopers failed to inform him

of his Miranda 3 rights and ignored his requests for an attorney. Follo wing

evidentiary hearings , the PCRA court denied relief , finding Appellant’s prior

counsel and the State Troopers to be credible and Appellant not credible

. On

appeal, this Court affirmed the denial of relief

. Id. at 5.

On August 19, 2022, Appellant filed the instant PCRA Petition pro se

. In

it , h e ac knowledged that the petition was facially untimely but claimed that it

satisfied the newly discovered fact exception

. Without development,

Appellant maintained that th e trial court did not have subject matter

jurisdiction to impose his sentence absent an indictment , citing to Article I,

_________________ __________ ______ ____ _______

2 Commonwealth v. Capriotti , No s

. 1919

- 26 MDA 2006 ( Pa. Super. filed Aug. 2 , 2007), appeal denied , 945 A

. 2d 166 (Pa

. 2008).

3 Miranda v. Arizona , 384 U.S. 436 (1966)

.J

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- 5

-

Section 10 of the Pennsylvania Constitution and Pa.R.Crim.P. 141, 143, and

215

. PCRA Petition, 9/19/22, at 3

- 4

. He observed that challenges to subject

matter jurisdiction are non

- waivable. Id. at 8 . While explaining that he had

learned of these “facts” from an inmate at the law library, he did not indicate

when he received this knowledge nor why he could not have ascertained it

earlier. Instead, he claimed that he had been “over

- charged” and reiterated

that his statements had been “fabricated.” Id. at 4

.
On September 1 , 2022, t he PCRA Court appointed Jennifer L.

McCambridge, Esq. , to represent Appellant and scheduled a hearing for

October 24, 2022

. On September 16, 2022 , however, the PCRA Court denied

Appellant’s PCRA P etition as untimely without holding a hearing

. 4

On October 16, 2022, Appellant’s counsel filed Notices of Appeal. 5 Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

_________________ __________ ______ ____ _______

4 The record does not indicate that the PCRA court provided Appellant with notice of the court’s intent to dismiss the petition without a hearing as required by Pa.R.Crim.P. 907. Appellant, however, has waived any claims of defective notice as he “ has not raised this issue on appeal [

. ] ” Commonwealth v. Zeigler , 148 A.3d 849, 852 n. 2 (Pa. Super. 2016). “ Moreover, failure to issue [a] Rule 907 notice is not reversible error where the record is clear that the petition is untimely [,] ” as in this case. Id.

5 Appellant filed identical Notices of Appeal , listing all eight trial court docket numbers

. O ne copy of the Notice of Appeal at each docket in this Court designates one specific trial court docket number with faint highlighting , which arguably satisfies our Supreme Court’s requirement that separate notices of appeal be filed corresponding to each docket. See Commonwealth v. Young , 265 A.3d 462, 477 (Pa. 2021) ; see also Commonwealth v. Johnson , 236 A.3d 1141, 1148 (Pa. Super. 2020 ) ( en banc ) (accepting notices of appeal with multiple docket numbers, where the appellant (Footnote Continued Next Page)J

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- 6

-

On June 19, 2023, Appellant’s counsel filed a Turner/Finley No

- Merit

Brie f and an Application to Withdraw as Counsel. 6 Appellant has not filed a

respons e

. On June 22, 2023, this Court consolidated Appellant’s cases sua

sponte

. Before this Court, Appellant’s counsel raises the following question:

Did the Trial Court err and/or abuse its discretion in concluding that the Defendant’s PCRA Motion was not timely filed and, therefore, the Defendant ’ s request for relief was jurisdictionally barred?
Turner/Finley No

- Merit Brief at 9.

A.

We must first determine whether Appellant’s c ounsel has satisfied the

requirements for withdrawal before conducting our independent review of the

merits. PCRA c ounsel seeking to withdraw under Turner/Finley in this Court

must submit a brief “ [1] detailing the nature and extent of counsel’s diligent

review of the case, [2] listing the issues which the petitioner wants to have

reviewed, [3] explaining why and how those issues lack merit, and [4]

_________________ __________ ______ ____ _______ designated one docket number on each Notice of Appeal by italicizing the number )

. Even assuming that Appellant has not sufficiently co mplied , we decline to remand for Appellant to file proper notices of appeal because it would be inappropriate and a waste of judicial resources where it is clear that Appellant failed to meet the PCRA’s jurisdictional time bar. See Commonwealth v. Young , 280 A.3d 1049, 1057 (Pa. Super. 2022) (concluding on remand that parties will be permitted to correct deficient notices of appeal “as a matter of course” absent , inter alia “ other circumstances that render clemency inappropriate ”).

6 See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ).J

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-

requesting permission to withdraw.” Commonwealth v. Wrecks , 931 A.2d

717, 721 ( Pa. Super. 2007) . “Counsel must also send to the petitioner: (1) a

copy of the “no

- merit” letter/brief; (2) a copy of counsel’s petition to

withdraw; and (3) a statement advising petitioner of the right to proceed pro

se or by new counsel.” Id. If we conclude that counsel satisfied the se
requirements, this court will conduct an independent review of the merits , and

if we agree with counsel, we will grant counsel’s application to withdraw and

affirm the denial of PCRA relief

. Id.

After review, we conclude that Appellant’s c ounsel satisfied the se

technical requirements as she reviewed the case , set forth Appellant’s

requested claims, determined that the claims did not satisfy any of the

exceptions to the PCRA’s jurisdictional time bar, and requested to withdraw

as counsel. Appellant’s c ounsel additionally provided Appellant with her Brief

and Application to Withdraw attached to a June 20, 2022 letter explaining

Appellant’s options to proceed with the appeal

. Accordingly, we proceed to

an independent analysis of Appellant’s claim seeking PCRA relief.

B.

In reviewing the denial of a PCRA petition, our standard of review

“ requires us to determine whether the PCRA court ’ s findings of fact are

supported by the record, and whether its conclusions of law are free from legal

error.” Commonwealth v. Small , 238 A.3d 1267, 1280 (Pa. 2020). While

we are bound by the PCRA court ’ s factual findings if supported by the record,

we review its legal conclusions de novo

. Id

. Our scope of review “ is limitedJ

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to the findings of the PCRA court and the evidence of record, which we view

in the light most favorable to the party who prevailed before that court.” Id

.
The PCRA mandates that any petition including “a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final,

unless the petition alleges ” and proves one of three exception s to the

timeliness requirement. 42 Pa.C.S. § 9545(b)(1). “[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);

U.S.Sup.Ct.R. 13 (petition for writ of certiorari must be filed within 90 days of

final judgment). Moreover, “ the PCRA ’ s timing provisions [ a re ] jurisdictional

in nature, and no court may entertain an untimely PCRA petition.” Small ,
238 A.3d at 1280.

As relevant to Appellant’s claim , a petitioner may satisfy an exception

to the PCRA’s time bar by plead ing and prov ing that “ 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 .” 42 Pa.C.S. § 9545(b)(1)(ii)

. For claims such as Appellant's arising after December 24, 2017, any petition

invoking a timeliness exception “shall be filed within one year of the date the

claim could have been presented.” Id. § 9545(b)(2). Notably, this Court has

observed that “a claim of lack of subject matter jurisdiction does not qualify

as one of the statutory exceptions to the PCRA ’ s jurisdictional time bar.”

Commonwealth v. Larkin , 235 A.3d 350, 356 (Pa. Super. 2020) ( en banc).J

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- C

.

A s set forth above, Appellant’s PCRA Petition is facially untimely as it

was filed in 2022 , fourteen years after his sentence became final in 2008.

Appellant a rgues that he me t the newly discovered fact exception based upon

his assertion that the trial court lacked subject matter jurisdiction to impose

his sentence absent an indictment

. We reject this argument.

Appellant’s Petition does not satisfy the newly discovered fact exception

because he does not explain why he was unable to ascertain the asserted facts

sooner through the exercise of due diligence nor does he state that he filed

his Petition “ within one year of the date the claim could have been presented.”

42 Pa.C.S. § 9545 (b)(1)(ii), (b)(2). As his counsel aptly observes, “[t]he

record is simply devoid of evidence that Appellant was just made aware of a

deficiency in the manner in which he was charged.” Turner/Finley Brief at

17. Moreover, while Petitioner observes that a challenge to subject matter

jurisdiction is non

- waivable, he fails to recognize that such a claim does not

excuse a petitioner from satisfying the PCRA’s jurisdictional t ime bar. Larkin ,
235 A.3d at 356. As Appellant’s PCRA Petition is untimely, we grant

Appellant’s counsel’s application to withdraw and affirm th e PCRA court’s

Order.

Application to Withdraw as Counsel granted. Order affirmed.J

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/20 /2023