J-S59029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANTHONY BRIGHTWELL

                            Appellant                  No. 413 EDA 2014


                 Appeal from the PCRA Order January 13, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000060-2003,
                            CP-15-CR-9999549-2003


BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED SEPTEMBER 16, 2014

        Anthony Brightwell appeals from the order of the Court of Common

Pleas of Chester County that dismissed his third petition filed pursuant to the

Post Conviction Relief Act (PCRA).1 After careful review, we affirm.

        On direct appeal, this Court set forth the relevant procedural history of

this case as follows:

        [Brightwell] was arrested in conjunction with two criminal
        incidents occurring on November 8, 2002 and November 10,
        2002. The two cases were consolidated at trial. [Brightwell]
        filed a pre-trial motion to sever the cases, which the trial court
        denied on December 30, 2003. On January 8, 2004, a jury
        convicted [Brightwell] of [several] offenses. On March 10, 2004,
        the trial court sentenced [Brightwell] to 25-
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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     incarceration for two counts of robbery for the November 8th
     incident, to be served concurrently, and 25-
     incarceration for two counts of robbery for the November 10th
     incident to be served concurrently, and consecutive to the
     November 8th convictions, for an aggregate sentence of 50 to


                                                nvictions for crimes
     of violence. [Brightwell] was first convicted of robbery and
     conspiracy on June 12, 1984, and for aggravated assault on
     March 19, 2001.

Commonwealth       v.   Brightwell,    No.   1046   EDA   2004,   unpublished

memorandum at 2-3 (Pa. Super. filed May 3, 2005).

     In its opinion, the PCRA court adds the following relevant information




     in 2001, although he did not serve his sentence for the set of

     robberies because he failed to appear at the prison at the
     appointed date and time of his sentence, electing instead to
     become a fugitive. If [Brightwell] had in fact complied with the

     not have committed the instant offenses because he would have
     been gainfully occupied in prison.

PCRA Court Opinion, 4/2/14, at 20-21 (emphasis in original).




Supreme Court denied his petition of allowance of appeal on September 27,

2005. Commonwealth v. Brightwell, 885 A.2d 40 (Pa. 2005).

     Brightwell filed a timely PCRA petition on January 19, 2006, which the

PCRA court denied on October 13, 2006. On appeal, this Court remanded


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the matter, and after further proceedings, we affirmed the denial of the

petition on August 20, 2009. Commonwealth v. Brightwell, 935 A.2d 5

(Pa. Super. 2009) (unpublished memorandum). The Pennsylvania Supreme

                                                              Commonwealth

v. Brightwell, 997 A.2d 1174 (Pa. 2010).

     On September 16, 2011, Brightwell filed his second PCRA petition,

which the PCRA court dismissed on November 17, 2011. On November 28,

2012, this Court affirmed the dismissal because the petition was untimely.

Commonwealth       v.   Brightwell,    63   A.3d   840   (Pa.   Super.   2012)

(unpublished memorandum).        The Pennsylvania Supreme Court denied

allowance of appeal.    Commonwealth v. Brightwell, 67 A.2d 792 (Pa.

2013).

     On September 24, 2013, Brightwell filed his third PCRA petition, which

the court dismissed on January 13, 2014. This appeal followed.

     Brightwell raises the following issues for our review:

     1. Whether the sentencing court lacked jurisdiction and
        statutory authority to impose the sentence that it did upon
        [Brightwell], making such a sentence null and void when
        issued, therefore reversible, and non-waivable even for
        purposes of the PCRA.

     2. Whether the Commonwealth and the PCRA Court waived for
        appellate review an argument addressing the issue of

         jurisdiction to sentence [him] to an aggregate sentence of 50
         to 100 years of imprisonment?

     3. Whether [Brightwell] was denied his constitutionally
        guaranteed right to effective representation at sentencing,
        when sentencing counsel failed to object to [Brightwell] being

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          sentenced as a third strike offender (when he was not),
          whereas the sentencing court exceeded its power and
          authority, therefore lacking jurisdiction to impose the two
          consecutive 25 to 50 year sentences the defendant received.




determination of the PCRA court is supported by the evidence of record and



there    is   no     support   for   the    finding

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).

        Section 9545 of the PCRA provides in relevant part:

          (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 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 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.

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         (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.

         (3)    For purposes of this subchapter, 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
                review.

42 Pa.C.S. § 9545(b).

                                                              l on December 26,

2005, when the ninety-day period for filing a petition for writ of certiorari

with the United States Supreme Court expired.             See U.S.Sup.Ct.R. 13.

Therefore, pursuant to section 9545(b)(1), Brightwell had to file the PCRA

petition at issue by December 26, 2006 in order for it to be timely.

However, Brightwell did not file the instant petition until September 24,

2013, more than 7½ years after his judgment of sentence became final.

      Because Brightwell failed to plead and prove any of the exceptions set

forth in section 9545(b)(1)(i-iii), he is not entitled to relief.



      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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