J-S34013-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

BRYAN J. THORNTON

                        Appellant                  No. 2021 EDA 2016


                Appeal from the PCRA Order May 20, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0830001-1990


BEFORE: BOWES, SOLANO, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED JUNE 12, 2017

     Bryan J. Thornton appeals from the order denying his third pro se

PCRA petition as untimely. We affirm.

     This matter had its genesis in an altercation that occurred on June 9,

1990, in which Appellant, acting in concert with one other person, shot and

killed Gregory Jackson. Following a bench trial, Appellant was convicted of

third-degree murder, criminal conspiracy, and reckless endangerment. The

court imposed a sentence of ten to twenty years imprisonment for third-

degree murder, five to ten years for conspiracy, and one to two years for

reckless endangerment, resulting in a total aggregate sentence of sixteen to

thirty-two years incarceration. Appellant filed an appeal to this Court, and

we affirmed his judgment of sentence. Commonwealth v. Thornton, 633


* Retired Senior Judge specially assigned to the Superior Court.
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A.2d 1225 (Pa.Super. 1993) (unpublished memorandum), appeal denied

Commonwealth v. Thornton, 641 A.2d 585 (Pa. 1994).

      Appellant filed two previous PCRA petitions, neither of which resulted

in relief.     On August 19, 2015, Appellant filed the instant pro se PCRA

petition, his third.     The PCRA court issued a Rule 907 notice of intent to

dismiss, and, on May 20, 2016, dismissed Appellant’s petition finding that it

was untimely. This timely appeal followed. Appellant presents four issues

for our review:

   (1)       Did the [PCRA] court error, denying to correct [Appellant’s]
             illegal sentence by determining that the court lacked
             jurisdiction?

   (2)       Is [Appellant] entitled to a remand for resentencing since the
             sentence imposed by the trial court is unreasonable,
             excessive and without statutory authorization?

   (3)       Was [Appellant] denied Equal Protection of the law in violation
             of both State and Federal Constitutions, in that the trial
             court’s failure to merge the lesser included offense of
             recklessly endangering another person, and criminal
             conspiracy into the great crime of third degree murder, as the
             offenses charged are one solitary criminal act when viewing
             the facts in the case?

   (4)       Is the [Appellant] [actually innocent] of both the sentence,
             and the charge of criminal conspiracy where this particular
             court [Superior Court], as well as the highest court in
             Pennsylvania the [Supreme Court] have given rulings stating
             that conspiracy to third degree murder is not a cognizable
             offense under Pennsylvania law, therefore, the sentence, and
             the conviction are illegal?

Appellant’s brief at 3 (unnecessary capitalization omitted).




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      It is well settled that all PCRA petitions, including subsequent petitions,

must be filed within one year of the date a defendant’s judgment becomes

final unless an exception to the one-year time restriction applies. 42 Pa.C.S.

§ 9545(b)(1).      This time-bar is jurisdictional in nature.    Thus, if a PCRA

petition is untimely, “neither this Court nor the trial court has jurisdiction

over the petition.”        Commonwealth v. Miller, 102 A.3d 988, 992

(Pa.Super. 2014) (citation omitted).          Whether a petition is timely is a

question of law. Hence, our standard of review is de novo and our scope of

review is plenary.       Commonwealth v. Hudson, 156 A.3d 1194, 1197

(Pa.Super. 2017).

      Where a petition is untimely, the petitioner bears the burden to plead

and prove that a statutory exception applies.         Id.   If no such exception

applies, the petition must be dismissed, and this Court cannot consider its

merits. Id. The PCRA sets forth the relevant provisions as follows:

   (b)   Time for filing petition. –

      (1)    Any petition under this subchapter, including a second or
             subsequent petition, shall be filed within one year of the
             date the judgment of sentence becomes final, unless the
             petition alleges and the petitioner proves that:

            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 law 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

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           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.

     (2)     Any petition invoking an exception provided in paragraph
             (1) shall be filed within 60 days of the date the claim could
             have been presented).

42 Pa.C.S. § 9545(b)(1) and (2).

     Here, Appellant’s petition for allowance of appeal to the Pennsylvania

Supreme Court was denied by order on February 23, 1994.               Thus, his

judgment of sentence became final on May 23, 1994, following the

expiration of his ninety-day allowance to petition the United State Supreme

Court for review. As such, Appellant had until May 23, 1995 to file a timely

PCRA petition. Appellant filed the instant PCRA petition on August 19, 2015,

rendering his petition facially untimely.      In order for this Court to have

jurisdiction over his claims, Appellant must plead and prove one of the three

statutory exceptions detailed above.

     However, Appellant has not pled that any of the three statutory

exceptions apply to overcome the PCRA’s time-bar. Rather, he asserts that

the claims he raised in his PCRA petition implicate the legality of his

sentence.         He contends that the court has an inherent power to correct

“patent and obvious” illegal sentences. Appellant’s brief at 5. Moreover, in



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his response to the PCRA court’s Rule 907 notice of intent to dismiss,

Appellant alleged that, since legality of sentence claims cannot be waived,

his claim was, in-itself, sufficient to overcome the PCRA’s statutory time-bar.

We disagree.

      In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the appellant

therein presented a similar argument, claiming, inter alia, that challenges to

the legality of a sentence overcome the PCRA’s statutory time restriction.

The appellant in Fahy asserted that the court must have the power to reach

the merits of such a claim since failing to do so would result in the execution

of an illegal sentence of death. Id. at 223. Our Supreme Court rejected this

position, observing, “[a]lthough legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits

or one of the exceptions thereto.” Id. Thus, we affirmed the PCRA court’s

dismissal of his petition for PCRA relief.    See also Commonwealth v.

Jackson, 30 A.3d 516, 521 (Pa.Super. 2011) (discussing court’s inherent

jurisdiction to correct patent errors in sentencing and holding “even if there

was an obvious illegality in [the defendant’s] sentence, the PCRA court

would not have had jurisdiction to consider [defendant’s] claim.”).

      Since Appellant has not pled and proven an exception to the PCRA’s

statutory time bar, the PCRA court properly concluded that his petition was

untimely.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/2017




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