J-A27042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    LYNN EDWARD ELMS                           :
                                               :
                      Appellant                :       No. 875 WDA 2017

                   Appeal from the PCRA Order May 30, 2017
                in the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001226-1998

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 11, 2018

       Lynn Edward Elms (“Elms”) appeals, pro se, from the Order dismissing

his eighth Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

       On March 30, 1999, following a jury trial, Elms was convicted of

second-degree murder, robbery, and criminal conspiracy.          The trial court

sentenced Elms to an aggregate term of life in prison.1 This Court affirmed

Elms’s judgment of sentence for the second-degree murder conviction,2 and


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1
  Relevantly, Elms received a mandatory sentence pursuant to 18 Pa.C.S.A.
§ 1102(b), which provides that “a person who has been convicted of murder
of the second degree … shall be sentenced to a term of life imprisonment.”
2
  This Court vacated the separate, concurrent sentence imposed for Elms’s
robbery conviction because the trial court failed to merge the second-degree
murder and robbery convictions for sentencing purposes.
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the Pennsylvania Supreme Court denied allowance of appeal.                          See

Commonwealth v. Elms, 790 A.2d 337 (Pa. Super. 2001) (unpublished

memorandum), appeal denied, 800 A.2d 931 (Pa. 2002).

        On April 3, 2017, Elms filed the instant Petition, his eighth, challenging

the legality of his sentence.        On April 12, 2017, the PCRA court issued a

Notice of its intention to dismiss Elms’s Petition without a hearing, pursuant

to Pa.R.Crim.P. 907. Elms filed a “Petition in Opposition,” arguing that the

PCRA     court’s   “assertions    that    sec[tion]   9545(b)[’s]   time   limits   are

jurisdictional [are] dicta and not based on statutory analysis.”           Petition in

Opposition, 4/27/17, at 1.        The PCRA court subsequently dismissed Elms’s

Petition as untimely filed. Thereafter, Elms, pro se, filed the instant timely

appeal.3

               We review an order dismissing a petition under the PCRA
        in the light most favorable to the prevailing party at the PCRA
        level. This review is limited to the findings of the PCRA court
        and the evidence of record. We will not disturb a PCRA court’s
        ruling if it is supported by evidence of record and is free of legal
        error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

        Initially, under the PCRA, any PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment


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3
    The Commonwealth did not file a brief.



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becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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.”    Id. § 9545(b)(3).      The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.          Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Elms’s judgment of sentence became final in September 2002,

when the time for filing a petition for writ of certiorari with the United States

Supreme Court expired.      See 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. R. 13.

Thus, because Elms filed the instant Petition in 2017, his Petition is facially

untimely.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(3).         Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.”      Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

Additionally, “it is the petitioner’s burden to plead in the petition and prove

that one of the exceptions applies.       That burden necessarily entails an

acknowledgement by the petitioner that the PCRA petition under review is

untimely but that one or more of the exceptions apply.” Commonwealth v.




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Crews, 863 A.2d 498, 501 (Pa. 2004) (citations omitted, emphasis in

original).

       Here, Elms neither acknowledges that his Petition is untimely, nor

pleads any of the three timeliness exceptions set forth under 42 Pa.C.S.A.

§ 9545(b)(3). See Crews, 863 A.3d at 501. Instead, Elms argues that his

mandatory sentence of life in prison is illegal because the relevant

sentencing statutes have since been repealed.          Brief for Appellant at 9-10

(unnumbered).4

       Elms challenges the legality of his sentence based upon a lack of

statutory authorization, and such a claim is cognizable under the PCRA. See

42 Pa.C.S.A. § 9542 (stating that the PCRA “provides for an action by which

…   persons     serving    illegal   sentences   may   obtain   collateral   relief.”);

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (stating

that “[i]f no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction”) (citation omitted). However, a

challenge to the legality of a sentence is still subject to the PCRA’s

jurisdictional requirements. See Commonwealth v. Berry, 877 A.2d 479,

482 (Pa. Super. 2005) (en banc) (stating that “a court may entertain a

challenge to the legality of a sentence[,] so long as the court has jurisdiction

to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a

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4
 Elms previously raised a similar claim in his February 2014 and July 2014
Petitions, both of which the PCRA court dismissed as untimely filed.



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timely PCRA petition.”); see also Commonwealth v. Infante, 63 A.3d

358, 365 (Pa. Super. 2013) (stating that “[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.”) (citation omitted).

      As previously stated, Elms’s Petition is facially untimely. Additionally,

Elms failed to establish an exception to the PCRA’s timeliness requirement.

Accordingly, we lack jurisdiction to consider the merits of Elms’s challenge to

the legality of his sentence. See Commonwealth v. Jones, 932 A.2d 179,

182 (Pa. Super. 2007) (stating that when a petitioner challenges the legality

of his sentence in an untimely PCRA petition, “the claim is not waived, but

the jurisdictional limits of the PCRA itself render the claim incapable of

review.”).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2018




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