J-S67031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROY ROBINSON

                            Appellant                 No. 3366 EDA 2015


                  Appeal from the PCRA Order October 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0837291-1988


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                  FILED SEPTEMBER 07, 2016

        Appellant, Roy Robinson, appeals pro se from the order entered on

October 20, 2015, denying his petition for writ of habeas corpus, which the

lower court treated as a PCRA petition.1 We affirm.

        The relevant facts and procedural history are as follows: Following the

shooting death of Christopher Washington on February 20, 1988, Appellant

was arrested, and represented by counsel, he proceeded to a jury trial. The

jury convicted Appellant of, inter alia, first degree murder, and on April 30,

1990, the trial court sentenced Appellant to life in prison. On direct appeal,

this Court affirmed Appellant’s judgment of sentence on May 9, 1991. See

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1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.


*Former Justice specially assigned to the Superior Court.
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Commonwealth           v.    Robinson,         595   A.2d   193   (Pa.Super.   1991)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court.

       Appellant filed his first collateral petition on October 30, 1991, and

following the lower court’s denial of the petition, this Court affirmed on

August 20, 1999.            See Commonwealth v. Robinson, 745 A.2d 45

(Pa.Super. 1999) (unpublished memorandum). The Supreme Court denied

Appellant’s petition for allowance of appeal.

       Thereafter, Appellant filed serial PCRA petitions, all of which the PCRA

court dismissed. Appellant appealed the dismissal of his sixth PCRA petition,

and in a published opinion filed on January 14, 2011, this Court affirmed.

See Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011).

Specifically, the panel concluded Appellant’s sixth PCRA petition was

untimely filed and subject to no exceptions. See id.

       On December 3, 2014, Appellant filed a pro se petition for writ of

habeas corpus,2 and treating the petition as one filed under the PCRA, the

PCRA court provided Appellant with notice of its intent to dismiss. Appellant

filed several responses, and by order filed on October 20, 2015, the PCRA

court dismissed the petition as being untimely filed.             This timely pro se
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2
  Although Appellant’s pro se petition was docketed on December 5, 2014,
we deem it to have been filed on December 3, 2014, when Appellant handed
it to prison officials. See Commonwealth v. Patterson, 931 A.2d 710
(Pa.Super. 2007) (discussing the prisoner mailbox rule).



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appeal followed. The PCRA court did not order Appellant to file a Pa.R.A.P.

1925(b) statement; however, the PCRA court filed a Pa.R.A.P. 1925(a)

opinion explaining the reasons it found Appellant’s latest filing to be

untimely.3

       At the outset, contrary to Appellant’s argument, we conclude the PCRA

court properly treated Appellant’s instant petition, entitled “Petition for Writ

of Habeas Corpus,” under the auspices of the PCRA.          The PCRA provides:

“The action established in this subchapter shall be the sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist when this subchapter

takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A. §

9542. Thus, where a petitioner's claim is cognizable under the PCRA,

regardless of the title given to the petition, the court must analyze the

petition under the auspices of the PCRA. Commonwealth v. Taylor, 65

A.3d 462, 465-66 (Pa.Super. 2013).

       In his instant petition, Appellant alleged that his conviction and

sentence are illegal since they are derived from a collection of books entitled

Purdon’s, and these books are defective.         Appellant also alleged that his

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3
  Following the filing     of his appellate brief, Appellant filed an application
seeking leave to file      a post-submission communication brief. By order
entered on July 11,         2016, this Court granted Appellant’s application,
indicating we would         treat his “post-submission communication” as a
supplemental brief.



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sentence is illegal on the basis it is not supported by a written sentencing

order.4 As the PCRA court correctly observed, challenges to the legality of a

petitioner’s judgment of sentence are cognizable under the PCRA.          See

Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011). Accordingly,

the PCRA court properly treated Appellant’s petition for a writ of habeas

corpus as a PCRA petition.

       With regard to petitions filed under the PCRA, as this Court has

observed:

       The filing mandates of the PCRA are jurisdictional in nature and
       are strictly construed. The question of whether a petition is
       timely raises a question of law. Where the petitioner raises
       questions of law, our standard of review is de novo and our
       scope of review plenary. An untimely petition renders this Court
       without jurisdiction to afford relief.

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must

determine whether Appellant’s December 3, 2014, petition was timely filed

under the PCRA.

       The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.




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4
  The Commonwealth countered that the trial court entered a written
sentencing order.




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42 Pa.C.S.A. § 9545(b)(1).5 A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

       Three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).         To invoke an exception, a

petition must allege and the petitioner must prove:

       (i)       the failure to raise a claim previously was the result of
                 interference    by    government     officials with    the
                 presentation of the claim in violation of the Constitution
                 or the law of this Commonwealth or 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

       (iii)     the right asserted is a constitutional right that was
                 recognized by the Supreme Court of Pennsylvania after
                 the time period provide in this section and has been
                 held by that court to apply retroactively.
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5
  The PCRA provides that where a petitioner’s judgment of sentence became
final on or before the effective date of the amendments (January 16, 1996),
a special grace proviso allows first PCRA petitions to be filed by January 16,
1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056–1057
(Pa.Super. 1997) (explaining application of PCRA timeliness proviso). Here,
as discussed infra, Appellant’s judgment of sentence became final before the
effective date of the amendments, however, Appellant did not file his instant
petition by January 16, 1997. Moreover, the proviso does not apply to
“second or subsequent petitions[,]” and thus, Appellant does not meet the
requirements of the proviso on this basis as well. Commonwealth v.
Fairiror, 809 A.2d 396, 398 (Pa.Super. 2002).



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42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      Here, Appellant’s judgment of sentence became final on or about June

10, 1991, when the time for filing a petition for allowance of appeal to the

Pennsylvania Supreme Court expired. See Pa.R.A.P. 1113 (“[A] petition for

allowance of appeal shall be filed with the Prothonotary of the Supreme

Court within 30 days after the entry of the order of the Superior Court[.]”).

Therefore, Appellant had until approximately June 10, 1992, to file a timely

PCRA petition. Appellant’s instant petition was not filed until December 3,

2014, more than twenty-two years after his judgment of sentence became

final. Accordingly, the instant petition is facially untimely. See 42 Pa.C.S.A.

§ 9545(b)(1).

      Nevertheless, Appellant suggest that, since his sentence is illegal in

that there is no valid sentencing order, he is not subject to the PCRA’s

timeliness restrictions. However, our Supreme Court has held specifically

that, “[a]lthough legality of sentence is always subject to review within the

PCRA, [legality of sentencing] claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto.” Commonwealth v. Fahy, 558 Pa.

313, 737 A.2d 214, 223 (1999).

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      In the case sub judice, Appellant has not invoked any of the applicable

exceptions to the PCRA, and therefore, we agree with the PCRA court that

Appellant’s instant petition was untimely filed.

      Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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