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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
ANTHONY JACKSON,                         :         No. 2930 EDA 2017
                                         :
                        Appellant        :


                Appeal from the PCRA Order, August 11, 2017,
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at Nos. CP-51-CR-0014203-2007,
              CP-51-CR-0014205-2007, CP-51-CR-0014206-2007


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 02, 2018

        Anthony Jackson appeals, pro se, from the August 11, 2017 order

denying appellant’s third petition filed pursuant to the Post Conviction Relief

Act (“PCRA”)1 entered by the Court of Common Pleas of Philadelphia County.

Appellant was convicted of one count each of attempted murder, carrying a

firearm without a license, possessing an instrument of crime, recklessly

endangering another person, and two counts each of aggravated assault and

criminal conspiracy.2 After careful review, we affirm.




1   42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 901(a), 6106(a), 907(a), 2705, 2702(a), and 903(a),
respectively.
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        The relevant procedural history of this case is as follows:         On

August 15, 2008, a jury convicted appellant of the above-referenced crimes.

The trial court sentenced appellant to an aggregate term of 15-30 years’

imprisonment. Following sentencing, appellant filed a post-sentence motion

which the trial court denied on November 20, 2008.

        On June 2, 2009, appellant filed a petition pursuant to the PCRA. The

PCRA court granted appellant’s petition on December 18, 2009, and

reinstated appellant’s direct appellate rights. Appellant filed a timely notice

of appeal from the judgment of sentence, which this court affirmed on

January 19, 2011. Commonwealth v. Jackson, 23 A.3d 1084 (Pa.Super.

2011) (unpublished memorandum).        Our supreme court denied appellant’s

petition for allowance of appeal on August 30, 2011.      Commonwealth v.

Jackson, 27 A.3d 223 (Pa. 2011). Appellant did not file a writ of certiorari

with the Supreme Court of the United States.

        On August 9, 2012, appellant filed his first petition pursuant to the

PCRA.3     The PCRA court dismissed appellant’s petition on December 16,

2013.     This court affirmed the PCRA court’s order on April 24, 2015.

Commonwealth         v.   Jackson,   121    A.3d   1140    (Pa.Super.   2015)


3  In cases where a defendant’s first PCRA petition results in the
reinstatement of direct appellate rights, a subsequently filed PCRA petition is
treated as a “first petition.” Commonwealth v. Vega, 754 A.2d 714,
716 n.3 (Pa.Super. 2000), citing Commonwealth v. Priovolos, 746 A.2d
621, 624 (Pa.Super. 2000), appeal denied, 758 A.2d 1198 (Pa. 2000);
Commonwealth v. Lewis, 718 A.2d 1262, 1263-1264 (Pa.Super. 1998),
appeal denied, 737 A.2d 1224 (Pa. 1999).


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(unpublished memorandum).        Appellant filed a second PCRA petition on

June 17, 2015, which the PCRA dismissed on August 11, 2016. This court

affirmed the PCRA court’s order on September 7, 2016. Commonwealth v.

Jackson, 158 A.3d 168 (Pa.Super. 2016) (unpublished memorandum).

      Appellant filed a post-sentence motion to modify his sentence on

August 4, 2017, on the grounds that the PCRA court entered an illegal

judgment of sentence. The PCRA court treated appellant’s motion as a PCRA

petition and denied the petition on August 11, 2017.         On September 1,

2017, appellant filed a notice of appeal to this court.       The PCRA court

ordered appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) on September 11, 2017, and appellant

timely complied on September 13, 2017. On November 17, 2017, the PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Because appellant labeled his appeal as an appeal from a denial of a

post-sentence motion, this court issued an order on November 17, 2017,

directing appellant to show cause why his appeal should not be quashed as

untimely.   Appellant complied with this court’s order, filing a response on

December 4, 2017. On December 11, 2017, this court issued a per curiam

order deferring the issue of the timeliness of appellant’s appeal to this panel.

      Appellant raises the following issue for our review:

            Whether the sentencing court has committed           an
            error of law in finding that [appellant’s] pro       se
            motion for reconsideration and modification          of
            sentence was untimely, and therefore, could not      be


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            considered[?]    The court maintains the inherent
            power to correct or modify a clear and patent error
            in it’s [sic] sentence.       The failure to merge
            [appellant’s] sentence is a clear and patent error.

Appellant’s brief at 4.

      Appellant framed the petition currently before us as a denial of a

post-sentence motion and a direct appeal therefrom, where such an appeal

would be patently untimely. However, the PCRA court correctly treated this

motion as appellant’s third petition pursuant to the PCRA. Indeed, the PCRA

provides that “persons serving illegal sentences may obtain collateral relief.”

42 Pa.C.S.A. § 9542. A petition filed under the PCRA is the “sole means of

obtaining collateral relief[.]”   Id., see also Commonwealth v. Jackson,

30 A.3d 516, 518 (Pa.Super. 2011).          Here, because appellant is raising

issues pertaining to the legality of his sentence, his post-sentence motion

must be treated as a petition pursuant to the PCRA.

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 732 A.2d 582, 586 (Pa.
            1999). A prima facie showing of entitlement to
            relief is made only by demonstrating either that the
            proceedings which resulted in conviction were so
            unfair that a miscarriage of justice occurred which no
            civilized society could tolerate, or the defendant’s
            innocence of the crimes for which he was charged.
            Id. at 586. Our standard of review for an order
            denying post-conviction relief is limited to whether


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           the trial court’s determination is supported by
           evidence of record and whether it is free of legal
           error. Commonwealth v. Jermyn, 709 A.2d 849,
           856 (Pa. 1998).

           A PCRA petition, including a second or subsequent
           petition, must be filed within one year of the date
           that judgment of sentence becomes final.            42
           Pa.C.S.[A.] § 9545(b)(1). A judgment becomes final
           for purposes of the PCRA “at the conclusion of direct
           review, including discretionary review in the
           Supreme Court of the United States and the
           Supreme Court of Pennsylvania, or the expiration of
           time for seeking the review.”         42 Pa.C.S.[A.]
           § 9543(b)(3). PCRA time limits are jurisdictional in
           nature, implicating a court’s very power to
           adjudicate a controversy. Commonwealth v. Fahy,
           737 A.2d 214 (Pa. 1999). Accordingly, the “period
           for filing a PCRA petition can be extended only if the
           PCRA permits it to be extended, i.e., by operation of
           one of the statutorily enumerated exceptions to the
           PCRA time bar. Id. at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014).    We must first determine whether the PCRA court

correctly dismissed appellant’s PCRA petition as untimely.

     In the case at bar, our supreme court denied appellant’s petition for

allowance of appeal on August 30, 2011.      Appellant did not file a writ of

certiorari to the Supreme Court of the United States.           Accordingly,

appellant’s judgment of sentence became final on November 28, 2011.

Appellant filed the PCRA petition styled as a post-sentence motion at issue

on August 4, 2017—more than five years after his judgment of sentence

became final and more than four years after a PCRA petition could be

considered timely. See 42 Pa.C.S.A. § 9545(b)(1).


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      As noted above, the PCRA does enumerate exceptions to the one-year

requirement. A petitioner may file a petition under the PCRA after one year

has passed from the final judgment of sentence for any of the following

reasons:

            (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.A. § 9545(b)(1)(i)-(iii).     Section 9545 also mandates that any

petition filed under these exceptions must be filed within 60 days of the date

the claim could have been presented. Id. at § 9545(b)(2).

      In the appeal before us, appellant fails to plead any of the exceptions

to the PCRA time-bar.      Rather, throughout his brief, appellant appears to

argue that the trial court erred when it did not merge his convictions for

sentencing purposes; however, appellant does not address any of the

enumerated exceptions to the PCRA time-bar to the extent he claims his

sentence is illegal, is still subject to the time bar. (Appellant’s brief at 7-13.)


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Therefore, we find that we do not have jurisdiction to consider the merits of

the issue raised by appellant on appeal.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/2/18




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