J-S38024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

HOWARD M. JONES,

                            Appellant               No. 2430 EDA 2015


                  Appeal from the PCRA Order of June 29, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0908121-2002


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND JENKINS, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 22, 2016

       Appellant, Howard M. Jones, appeals pro se from the order entered on

June 29, 2015 dismissing as untimely his second 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 October 2, 2003, a jury convicted Appellant of burglary, theft by

unlawful taking, and possession of an instrument of crime. Finding Appellant

to be a recidivist offender pursuant to 42 Pa.C.S.A. § 9714,1 the trial court

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1
  Section 9714 provides mandatory sentencing enhancements for second
and subsequent violent offenses.       It provides, in pertinent part, that
“[w]here the person had at the time of the commission of the current
offense previously been convicted of two or more [] crimes of violence
arising from separate criminal transactions, the person shall be sentenced to
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imposed an aggregate sentence of 25 to 50 years of imprisonment on

November 24, 2003. On November 15, 2006, this Court affirmed Appellant’s

judgment of sentence. See Commonwealth v. Jones, 915 A.2d 144 (Pa.

Super. 2006) (unpublished memorandum).                  The Pennsylvania Supreme

Court denied further review on May 15, 2007.              See Commonwealth v.

Jones, 923 A.2d 1173 (Pa. 2007).

      On November 20, 2007, Appellant filed his first PCRA petition.         On

April 22, 2010, the PCRA court entered an order reinstating Appellant’s

direct appeal rights nunc pro tunc. On appeal, this Court vacated the order

reinstating Appellant’s direct appeal rights, since Appellant previously

litigated a direct appeal. We, however, remanded the matter and directed

counsel to file an amended PCRA petition to raise the issue that Appellant’s

conviction for theft by unlawful taking should have merged with his burglary

conviction for sentencing purposes.              See Commonwealth v. Jones, 60

A.3d 848 (Pa. Super. 2012) (unpublished memorandum).               On January 9,

2013, counsel for Appellant filed an amended PCRA petition as directed. On

May 17, 2013, the PCRA court vacated Appellant’s sentence for theft by

unlawful taking. The PCRA court granted no further relief and Appellant did

not appeal.



                       _______________________
(Footnote Continued)

a minimum sentence of at least 25 years of total confinement.” 42 Pa.C.S.A.
§ 9714(a)(2).



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       On August 8, 2014, Appellant filed his second pro se PCRA petition.

After giving the requisite notice pursuant to Pa.R.Crim.P. 907, the PCRA

court dismissed the second petition as untimely on June 29, 2015.         This

timely appeal resulted.2

       On appeal, Appellant presents the following issues, pro se, for our

review:

          Did Attorney Samantha Gallagher render Appellant
          ineffective assistance of counsel, when Attorney Gallagher
          [a]mended the PCRA petition with respect to the sentence
          for theft by unlawful taking only, and where counsel
          abandoned other issues in the pro se PCRA petition?

          Did Attorney Samantha Gallagher render Appellant
          ineffective assistance of counsel when PCRA counsel
          abandoned Appellant and failed to advance any of the pro
          se arguments that Appellant raised in the [pro se] PCRA
          [petition] which caused him to be time barred for his 2nd
          PCRA petition?

          Did PCRA counsel render Appellant ineffective assistance of
          counsel when PCRA counsel abandoned Appellant and failed
          to advance the argument that Appellant’s trial counsel,
          Rebecca Lester, was ineffective where trial counsel failed to
          independently investigate the circumstances of Appellant’s
          1989 conviction for burglary; and where trial counsel
          accepted the Commonwealth’s inaccurate assurances that, if
          convicted, Appellant would face sentence as a second strike
          offender, where the Commonwealth’s assurances were
          incorrect and Appellant actually faced sentence, and indeed
          was sentenced, as a third strike offender under [42]
          Pa.C.S.A. § 9714 to 25 to 50 years[’] imprisonment?

____________________________________________


2
  Appellant filed a notice of appeal on July 14, 2015. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on August 17, 2015.



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         Did the trial court err in sentencing Appellant as a third
         strike offender pursuant to [42] Pa.C.S.A. § 9714(a)(2)
         after Appellant’s conviction for F-1 burglary? (Not raised in
         the PCRA petition, but because illegal sentencing claims are
         not waived it is possible for this court to review this claim
         for the first time here).

Appellant’s Brief at 6 (unpaginated).

       We shall examine all of Appellant’s issues in a single discussion as the

claims all center on his contention that he received layered ineffective

assistance of counsel because various attorneys representing Appellant at

trial and on his first PCRA petition failed to challenge the imposition of a

mandatory sentence as a third-strike offender under 42 Pa.C.S.A. § 9714.

Appellant argues that he pled guilty to three burglaries in 1989 “on the same

date, and was sentenced for all three burglaries at the same hearing” which

should have amounted to “his first strike for purposes of § 9714(a)(1).” Id.

at 22.    He further claims that an investigation of the record would have

shown that one of the prior 1989 convictions stemmed from his entry into a

private residence after armed assailants pursued him. Id. at 25. Appellant

avers that had counsel investigated, “there was a strong probability that

[one of the 1989] F-1 burglary offense[s] would have been reduced to a

charge of criminal trespass[.]”         Id. at 20.   Accordingly, Appellant claims

counsels’ cumulative errors caused him to reject a plea offer that resulted in

the imposition of a mandatory sentence and he is entitled to relief.3
____________________________________________


3
  Upon review of the record, Appellant raised an additional claim in his PCRA
petition that the PCRA court addressed. Appellant argued that the United
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      “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”         Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014) (bracket omitted). In this case, Appellant alternatively

challenges the legality of the sentence he received and the reliability of trial

counsel’s consultation regarding the range of punishments available under

the recidivist provision of Section 9714.          “[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.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.

Super. 2007). Stated differently, “although illegal sentencing issues cannot

be waived, they still must be presented in a timely PCRA petition.” Taylor,

65 A.3d at 465 (citation omitted). Under Taylor, this Court may not award

relief when presented with a meritorious sentencing claim raised in an

untimely PCRA petition.

                       _______________________
(Footnote Continued)

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.
2151 (2013) announced a new constitutional right that applied to him
retroactively in support of an exception to the one-year time bar under the
PCRA. The PCRA court rejected Appellant’s claim. Appellant has abandoned
that issue on appeal and we conclude it is waived. See Commonwealth v.
Bullock, 948 A.2d 818, 823 (Pa. Super. 2008) (holding an issue identified
on appeal but not properly developed in an appellate brief is waived).
Regardless, we have previously determined that Alleyne is not retroactive
and cannot serve as the basis for invoking the timeliness exception found at
42 Pa.C.S.A. § 9545(b)(1)(iii). See Commonwealth v. Miller, 102 A.3d
988, 995 (Pa. Super. 2014).



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        This Court has stated:

          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.[4] A petition invoking one of these exceptions
          must be filed within sixty days of the date the claim could
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4
    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;

          (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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           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).        Furthermore, our Supreme Court has

declared, “[i]t is well-settled that allegations of ineffective assistance of

counsel will not overcome the jurisdictional timeliness requirements of the

PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005).

      Here, our Supreme Court denied review of Appellant’s direct appeal on

May 15, 2007. Thus, his judgment of sentence became final 90 days later,

or on August 13, 2007, after the time for seeking review with the United

States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) (providing “a

judgment 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[.]”); U.S. Sup.Ct. R. 13.1. (petition for writ of certiorari must be filed

within 90 days of date that state court of last resort denies discretionary

review).     Appellant filed his most recent PCRA petition on August 8, 2014,

almost     seven   years   after   his   judgment   of   sentence   became   final.

Accordingly, the petition was patently untimely.

      Appellant does not assert that one of the Section 9545(b) exceptions

applies to overcome the one-year time bar under the PCRA. Moreover, in

the absence of a valid timeliness exception, neither a meritorious illegal


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sentencing claim nor a claim of ineffective assistance of counsel can

overcome the jurisdictional timeliness requirement of the PCRA. Hence, we

agree that the PCRA court lacked jurisdiction to entertain Appellant’s current

PCRA petition.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




____________________________________________


5
    Finally, we note that although Appellant asserts that the trial court erred
by finding he committed his third strike for Section 9714 purposes, a review
of the certified record belies this claim. Appellant was convicted of statutory
rape in 1983. N.T., 11/12/2003, at 12. Rape is an enumerated crime of
violence under Section 9714 and constitutes Appellant’s first strike. See 42
Pa.C.S.A. § 9714(g). Appellant was convicted of three burglaries in 1989. A
burglary committed wherein a person is present at the time is also a crime
of violence. Id. Accordingly, even if one of the three 1989 burglaries was
committed without a person present as Appellant suggests, he does not
challenge the other two burglary convictions for Section 9714 sentencing
purposes. Hence, those burglaries resulted in a second strike under Section
9714. Most recently, Appellant pled guilty to burglary in 2003 and it is
undisputed that the victim was home at the time of the crime. That
conviction resulted in Appellant’s third strike and the imposition of the lawful
mandatory sentence at issue.



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