J-S03029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMIR CARTAIR                               :
                                               :
                       Appellant               :   No. 2710 EDA 2017

                   Appeal from the PCRA Order July 21, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0132621-1994


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JUNE 29, 2018

        Amir Cartair appeals pro se from the order dismissing his Post Conviction

Relief Act (“PCRA”) petition as untimely. He argues the PCRA court had

jurisdiction to entertain his petition as he is serving a sentence that was later

rendered illegal in Alleyne v. United States, 570 U.S. 99 (2013). There, the

Supreme Court of the United States held that sentencing factors used to

support the imposition of a mandatory minimum sentence must be submitted

to a jury for trial or admitted to by the defendant. We affirm.

        Cartair was sentenced to life in prison without possibility of parole after

a jury convicted him of, among other crimes, first-degree murder. This Court

affirmed his judgment of sentence, and the Supreme Court of Pennsylvania

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   Former Justice specially assigned to the Superior Court.
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denied his appeal on November 14, 1996. Cartair did not appeal to the

Supreme Court of the United States.

       Cartair filed a pro se PCRA petition1 on August 22, 2012. In this petition,

he raised a claim that he was entitled to re-sentencing under Miller v.

Alabama, 567 U.S. 460 (2012) (ruling imposition of mandatory life without

parole sentences on juvenile offenders is unconstitutional). He subsequently

filed supplemental pro se petitions in 2016, raising a claim that his sentence

was illegal under Alleyne.

       The PCRA court appointed counsel to assist Cartair, but counsel

ultimately found no merit to Cartair’s claims. The PCRA court granted counsel

permission to withdraw and dismissed Cartair’s petition as untimely. This

appeal followed.

       On appeal, Cartair has abandoned his Miller argument. He further

concedes his petition is facially untimely. See Appellant’s Brief, at 10. He

focuses on his claim that an illegal sentence is an exception to the PCRA’s

timeliness requirements.




____________________________________________


1 The trial court docket has a large gap from 1996 to 2009. It is unclear
whether this is due to any loss of documents when records were transferred
to digital format, or if it is merely an accurate record. Cartair apparently
believes this appeal lies from his second PCRA petition, although it is unclear
whether he believes his 2012 petition to be his first. In any event, the PCRA
court appointed counsel to represent Cartair in this proceeding, and we need
not determine whether this constitutes Cartair’s first PCRA petition.

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      Generally, the PCRA grants jurisdiction to hear a collateral attack on a

conviction only if a petition is filed in the year after the judgment of sentence

becomes final. See Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012).

The judgment of sentence is finalized when the petitioner’s direct appeal rights

have been exhausted. See id., at 17. After the expiration of the one-year

period, a petitioner must plead and prove one of three enumerated exceptions

to the time-bar in order to establish jurisdiction under the PCRA. See id.

      Cartair concedes that “Alleyne does not apply retroactively to cases

pending on collateral review….” Commonwealth v. Washington, 142 A.3d

810, 820 (Pa. 2016). Rather, he argues the PCRA itself provides that illegal

sentences are not subject to the time bar, highlighting the first sentence of 42

Pa.C.S.A. § 9542 (“This subchapter provides for an action by which … persons

serving illegal sentences may obtain collateral relief.”)

      He combines his interpretation of § 9542 with his interpretation of

Commonwealth v. Vasquez, 744 A.2d 1280 (Pa. 2000). He argues that

under Vasquez, an illegal sentence may always be corrected.

      However, “in order for this Court to review a legality of sentence claim,

there must be a basis for our jurisdiction to engage in such review.”

Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation

omitted). Put another way, “[t]hough not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised ... in an untimely




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PCRA petition for which no time-bar exception applies, thus depriving the court

of jurisdiction over the claim.” Id. (citation omitted; brackets in original).

      Furthermore, Cartair is mistaken in his reading of Vasquez. There, the

court had jurisdiction to review the issue, as it was entertaining the

defendant’s direct appeal. See Vasquez, at 1281 (“In this direct appeal…”).

The opinion therefore does not address the issue of jurisdiction on collateral

review.

      We conclude the PCRA court did not err in finding Cartair’s petition

untimely. We therefore affirm the order dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/18




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