J-S36031-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
                   v.                    :
                                         :
ROBERT MARTIN,                           :
                                         :
                    Appellant            :    Nos. 1867 & 1868 WDA 2014

           Appeal from the PCRA Order Entered October 24, 2014,
               in the Court of Common Pleas of Potter County,
          Criminal Division, at No(s): CP-53-CR-0000237-2010 and
                           CP-53-CR-0000238-2010

BEFORE:    PANELLA, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED JUNE 30, 2015

     Robert Martin (Appellant) appeals from an order which dismissed his

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

§§ 9541-9546. We affirm.

     The background underlying this matter can be summarized as follows.

Appellant entered open guilty pleas to a number of charges under the

above-captioned trial court docket numbers.      The trial court sentenced

Appellant, and he appealed. This Court affirmed the judgment of sentence

on March 20, 2013. Commonwealth v. Martin, 69 A.3d 1298 (Pa. Super.

2013) (unpublished memorandum).       Appellant did not seek allowance of

appeal with our Supreme Court.

     On October 21, 2013, Appellant filed his first PCRA petition. The PCRA

court denied the petition, and this Court affirmed the court’s order on

*Retired Senior Judge assigned to the Superior Court.
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September 17, 2014.        Commonwealth v. Martin, 107 A.3d 230 (Pa.

Super. 2014) (unpublished memorandum). Appellant did not seek allowance

of appeal with our Supreme Court.

       On September 24, 2014, Appellant pro se filed another PCRA petition.

On October 2, 2014, the PCRA court issued notice pursuant to Pa.R.Crim.P.

907 that it intended to dismiss the petition without holding an evidentiary

hearing because Appellant untimely filed his petition. After Appellant pro se

responded to the court’s Rule 907 notice, the court formally dismissed the

petition as untimely filed on October 24, 2014.

       Appellant, with the aid of counsel, timely filed a notice of appeal. The

PCRA    court   directed   Appellant   to    comply   with   Pa.R.A.P.   1925(b).

Appellant’s counsel filed a 1925(b) statement, and the PCRA court later

complied with Pa.R.A.P. 1925(a).        In his counseled brief to this Court,

Appellant asks us to consider one question, namely:

         Did the [PCRA] court err[] as a matter of law when it
         dismissed [] Appellants [sic] pending petition refusing to
         consider [] Appellant’s pending second PCRA petition and
         where [] Appellant had not waived his right to review and
         a timely motion after the ruling in Commonwealth v.
         Newman, 2014 Pa. Super 179, 99 A.3d 86 (2014) and
         published on August 20, 2014 and Commonwealth v.
         Munday, 2013 Pa.Super. 273, 78 A.3d 661 (2013) since
         his petition was before the court within sixty (60) days of
         the change of law?

Appellant’s Brief at 11.




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      We must determine whether the PCRA court properly dismissed

Appellant’s PCRA petition as untimely filed. Our standard of review of the

denial of a PCRA petition is limited to examining whether the court’s rulings

are supported by the evidence of record and free of legal error.

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010).

      Under the PCRA, all petitions must be filed within one year of the date

that the petitioner’s judgment became final, unless one of three statutory

exceptions applies. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Chester,

895 A.2d 520, 522 (Pa. 2006).        For purposes of the PCRA, a judgment

becomes final at the conclusion of direct review. 42 Pa.C.S. § 9545(b)(3).

“The PCRA’s time restrictions are jurisdictional in nature.”         Chester, 895

A.2d at 522. “Thus, ‘[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.’”

Id. (quoting Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

      This Court affirmed Appellant’s judgment of sentence on March 20,

2013. Appellant had 30 days to petition our Supreme Court for allowance of

appeal.   Pa.R.A.P. 1113(a).   He did not do so.     Thus, for purposes of the

PCRA, Appellant’s judgment became final on April 19, 2013. He, therefore,

had until April 19, 2014, in order to file timely a PCRA petition.




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     Because Appellant untimely filed his PCRA petition in September of

2014, he had the burden of pleading and offering to prove one of the

following exceptions:

     (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).

      Appellant’s PCRA petition did not allege any of the statutory

exceptions to the PCRA’s one year time bar.       Appellant did invoke the

subsection 9545(a)(1)(ii) exception in his response to the PCRA court’s Rule

907 notice. However, such action was insufficient to qualify as pleading an

exception in a PCRA petition.   Commonwealth v. Derrickson, 923 A.2d

466, 468-69 (Pa. Super. 2007).     Appellant, therefore, untimely filed his

PCRA petition, and the PCRA court was without jurisdiction to consider the




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merits of that petition.   Thus, the court properly dismissed the petition as

untimely filed.1

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




1
  In his appellate brief, Appellant argues that he timely filed his PCRA
petition because the claim raised therein is a non-waivable challenge to the
legality of his sentence. Appellant is incorrect. “As this Court recently
noted, [t]hough not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised ... in an untimely PCRA petition for
which no time-bar exception applies, thus depriving the court of jurisdiction
over the claim.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (citation and quotation marks omitted).


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