J-S33019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JEFFREY TAYLOR,

                        Appellant                   No. 1229 WDA 2015


                Appeal from the PCRA Order of April 21, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0000812-1996


BEFORE: GANTMAN, P.J., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                               FILED MAY 11, 2016

      Appellant, Jeffrey Taylor, appeals from the order entered on April 21,

2015, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   On November 9, 1995, in the Hill District in Pittsburgh,

Pennsylvania, Appellant and two co-defendants forced a jitney driver at

gunpoint to get into the trunk of his own car.        Appellant and his co-

defendants then drove the stolen car into the Oakland neighborhood of

Pittsburgh where they committed an armed robbery at a gas station.

Following the robbery, the co-defendants dropped Appellant off and then

shot the jitney driver seven times, killing him. On February 27, 1996, the

Commonwealth filed two bills of criminal information against Appellant. In



*Former Justice specially assigned to the Superior Court.
J-S33019-16



the first bill of criminal information, the Commonwealth charged Appellant

with kidnapping, robbery, robbery of a motor vehicle, and conspiracy;1 in

the other, the Commonwealth charged Appellant with criminal homicide.2

On January 30, 1998, a jury convicted Appellant of kidnapping, robbery,

robbery of a motor vehicle, conspiracy, and involuntary manslaughter. The

trial court imposed an aggregate sentence of 25 to 80 years of incarceration

for kidnapping, robbery, robbery of a motor vehicle, and conspiracy.         The

trial court further imposed a consecutive sentence of two-and-one-half to

five years of imprisonment for involuntary manslaughter. On direct appeal,

in an unpublished memorandum filed on July 30, 1999, a panel of this Court

affirmed Appellant’s judgment of sentence for kidnapping, robbery, robbery

of a motor vehicle, and conspiracy, but remanded for resentencing on the

involuntary manslaughter conviction.             On September 22, 1999, the trial

court imposed no further penalty for involuntary manslaughter.

       Thereafter,

         [o]n September 26, 2000, [Appellant] filed a timely PCRA
         petition. The PCRA court appointed counsel, C. Melissa
         Owen, Esquire (Attorney Owen), to represent [Appellant].
         Attorney Owen filed an amended PCRA petition on February
         20, 2001, and a second amended petition on April 2, 2001.
         In his amended petitions, [Appellant] contended that his
         appellate counsel was ineffective for failing to challenge the
         decision of the trial court to admit his confession when the
____________________________________________


1
    18 Pa.C.S.A. §§ 2901, 3701, 3702, and 903, respectively.
2
    18 Pa.C.S.A. § 2501.



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          Commonwealth had failed to establish the corpus delicti for
          robbery, robbery of a motor vehicle, conspiracy, and
          kidnapping. By [o]rder dated June 14, 2001, the PCRA court
          dismissed the petition without a hearing, prompting
          [Appellant] to appeal to the Superior Court. In a
          memorandum [o]pinion, the Superior Court affirmed the
          denial of post-conviction relief. [The Pennsylvania Supreme
          Court] granted allowance of appeal to address a conflict in
          [Pennsylvania] jurisprudence regarding the prerequisites of
          the “closely related crimes exception” to the corpus delicti
          rule.

Commonwealth v. Taylor, 831 A.2d 587, 590 (Pa. 2003) (footnote

omitted).    Our Supreme Court ultimately denied Appellant collateral relief,

concluding, “[t]he closely related crimes exception does not require that the

crimes share a common element.” Id. at 596.

      On October 27, 2014, Appellant filed a pro se PCRA petition.         On

November 3, 2014, the PCRA court appointed counsel to represent

Appellant.     On March 16, 2015, appointed counsel filed a petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

On March 17, 2015, the PCRA court granted counsel’s request to withdraw

and issued notice of its intent to dismiss the PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907. Appellant filed a timely pro se response on

March 31, 2015.       By order entered on April 21, 2015, the trial court

dismissed Appellant’s PCRA petition. Appellant did not file a timely notice of

appeal.     On June 15, 2015, Appellant filed a pro se motion to modify and

correct his sentence.    By order entered on July 27, 2015, the trial court




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reinstated Appellant’s appellate PCRA rights nunc pro tunc and appointed

appellate PCRA counsel.3 This appeal resulted.4

       On appeal, Appellant presents the following issue for our review:

         Did the trial court err when it dismissed Appellant’s
         [p]etition for [p]ost [c]onviction [r]elief without an
         evidentiary hearing relative to Appellant’s claims of
         ineffective assistance of counsel despite a counseled “no-
         merit” letter filed by appointed counsel wherein Appellant’s
         claims were not “patently frivolous” and, if proven, would
         have entitled Appellant to relief?

Appellant’s Brief at 5.

       Before we address this issue, we must determine whether the PCRA

court had jurisdiction to grant nunc pro tunc relief reinstating Appellant’s

PCRA appellate rights. We conclude that the court did not have jurisdiction.

       Appellant's June 15, 2015 pro se motion to modify and correct his

sentence must be considered a third PCRA petition. See Fairiror, 809 A.2d

at 397 (petition for reinstatement of PCRA appellate rights nunc pro tunc
____________________________________________


3
  As will be discussed at length infra, the PCRA court erred in this regard. If
Appellant desired to appeal from the dismissal of his PCRA petition, he
needed to do so in a timely fashion. Failing that, Appellant’s only avenue for
relief was to file a subsequent PCRA petition. See Commonwealth v.
Fairiror, 809 A.2d 396 (Pa. Super. 2002). Accordingly, the PCRA court
should have considered Appellant’s subsequent filing as a petition for PCRA
relief, which was then subject to the PCRA’s jurisdictional timing
requirements.
4
  On August 13, 2015, appointed appellate PCRA counsel filed a notice of
appeal. Appointed counsel filed a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b) on September 25, 2015. On
October 1, 2015, the trial court issued an opinion pursuant to Pa.R.A.P.
1925(a).



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considered      freestanding         request       for   collateral   relief);   see   also

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (“by its own

language, and by judicial decisions interpreting such language, the PCRA

provides the sole means for obtaining state collateral relief”). As a separate

PCRA petition, Appellant's June 2015 pro se submission was subject to the

PCRA’s timeliness requirements. See Fairiror, supra.

          The timeliness of a PCRA petition is a jurisdictional
          threshold and may not be disregarded in order to reach the
          merits of the claims raised in a PCRA petition that is
          untimely. Effective January 16, 1996, the PCRA was
          amended to require a petitioner to file any PCRA petition
          within one year of the date the judgment of sentence
          becomes final. A judgment of sentence 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.

                                 *             *             *

          However, an untimely petition may be received when the
          petition alleges, and the petitioner proves, that any of the
          three limited exceptions to the time for filing the petition
          [….] are met.5 A petition invoking one of these exceptions



____________________________________________


5
    The 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;

(Footnote Continued Next Page)


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         must be filed within sixty days of the date the claim could
         first have been presented. In order to be entitled to the
         exceptions to the PCRA's one-year filing deadline, the
         petitioner must plead and prove specific facts that
         demonstrate his claim was raised within the sixty-day time
         frame[.]

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal

citations and quotations omitted).

      Here, because there were two bills of criminal information, we

undertake a bifurcated analysis to ascertain the dates on which Appellant’s

judgments of sentence became final.               First, this Court affirmed Appellant’s

judgment of sentence for kidnapping, robbery, robbery of a motor vehicle,

and conspiracy on July 30, 1999.                 Thereafter, Appellant took no further

appeal. Thus, his judgment of sentence on these convictions became final

30 days later or on Monday, August 30, 1999. See Pa.R.A.P. 903 (“notice of

appeal [] shall be filed within 30 days after the entry of the order from which

the appeal is taken.”); see also 1 Pa.C.S.A. § 1908 (computation of time).



                       _______________________
(Footnote Continued)

         (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.A. § 9545(b)(1)(i-iii).



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      Our July 30, 1999 order disposing of Appellant’s direct appeal

remanded Appellant’s case for resentencing on his involuntary manslaughter

conviction.   On remand, the trial court imposed no further penalty for

involuntary manslaughter on September 22, 1999.          As Appellant did not

appeal that determination, his judgment of sentence for involuntary

manslaughter became final 30 days later on October 22, 1999.

      Appellant’s pro se request for modification of his sentence, filed on

June 15, 2015 and outside the 30-day appeal period for challenging the

dismissal of his October 2014 PCRA petition, was patently untimely since

more than 15 years passed after Appellant’s judgments of sentence became

final on all his convictions.   Moreover, Appellant cited no exceptions to the

PCRA’s timeliness requirements.       Because Appellant’s third petition was

untimely, the PCRA court lacked jurisdiction to grant nunc pro tunc

reinstatement of PCRA appellate rights.         Fairiror, 809 A.2d at 398.

Appellant’s failure to perfect a timely PCRA appeal in this case forever

relinquished his right to challenge the April 21, 2015 order that dismissed his

October 2014 petition. Since the PCRA lacked jurisdiction to grant the relief

that resulted in this appeal, we affirm the order dismissing Appellant’s PCRA

petition. See Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa. Super.




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2008) (“[I]t is established that we can affirm the trial court on any valid

basis.”).6

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/2016




____________________________________________


6
  Although Appellant maintains that he is entitled to relief because his claims
involve a challenge to the legality of his sentence, this contention is
unavailing.   We have said repeatedly that, “a court may entertain a
challenge to the legality of the sentence so long as the court has jurisdiction
to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a
timely PCRA petition.” See e.g. Commonwealth v. Fowler, 930 A.2d 586,
592 (Pa. Super. 2007); Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.
Super. 2013) (“although illegal sentencing issues cannot be waived, they still
must be presented in a timely PCRA petition.”).




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