J-S88006-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                1   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                                Appellee

                       v.

AUGUSTUS ANTHONY SIMMONS,

                                Appellant             No. 675 EDA 2016


             Appeal from the PCRA Order of February 12, 2016
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP- 46 -CR- 0005175 -2011

BEFORE:   OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             Filed January 17, 2017

     Appellant, Augustus Anthony Simmons, appeals pro se from the order

entered on February 12, 2016, which dismissed his second petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

     A prior panel of this Court explained the facts and procedural posture

underlying Appellant's guilty plea, sentence, and first PCRA petition:

        On March 8, 2012, Appellant entered         into   negotiated
                                                           a
        guilty plea[, wherein Appellant pleaded guilty to a number
        of charges, including conspiracy to commit murder and
        conspiracy to commit arson. That day,] the trial court
        imposed the agreed -upon sentence of 25 to 50 years'
        imprisonment. Appellant filed neither a post[ -]sentence
        motion nor a direct appeal. Instead, on January 2, 2013,
        Appellant  .   filed a timely PCRA petition[,] raising claims
                       .    .


        of plea counsel's ineffectiveness. Counsel was appointed.
        On April 22, 2013, PCRA counsel filed a no -merit letter and
        request    to    withdraw    as   counsel[,    pursuant     to
        Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
*Retired Senior Judge assigned to Superior Court.
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             Commonwealth v. Finley, 550 A.2d 213            (Pa. Super.
             1988) (en banc)]. After reviewing counsel's no -merit letter,
             the PCRA court issued a notice, pursuant to [Pennsylvania
             Rule of Criminal Procedure 907,] of its intent to dismiss
             Appellant's petition without a hearing.        On June 18,
                                                              .   .   .


             2014, the PCRA court granted PCRA counsel's petition to
             withdraw[] and dismissed Appellant's PCRA [petition].
Commonwealth v. Simmons, 122 A.3d                             1129          (Pa.    Super.    2015)

(unpublished memorandum) at             1 -2    (some internal capitalization omitted),

appeal denied, 125 A.3d 1201 (Pa. 2015).

        On June 11, 2015, this Court affirmed the dismissal of Appellant's                      first
PCRA    petition and, on October 14, 2015, the Pennsylvania Supreme Court

denied Appellant's petition for allowance of appeal.                  Id.
        On December 14, 2015, Appellant filed the                     current      PCRA   petition   -
which is Appellant's second petition for post- conviction collateral relief.

Within Appellant's second PCRA petition, Appellant neither acknowledged

that his petition was untimely nor pleaded                a   statutory exception to the
PCRA's one -year time -bar. See Appellant's Second PCRA Petition,                         12/14/15,

at   1 -15   and "Memorandum of Law to Support Second Petition for Post -

Conviction Relief."

       The      PCRA   court dismissed Appellant's second PCRA                          petition on

February 12, 2016 and Appellant filed           a   timely notice of appeal to this Court.
We now affirm the dismissal of Appellant's patently untimely, serial PCRA

petition.

       The PCRA contains      a   jurisdictional time -bar, which            is   subject to limited

statutory exceptions.        This time -bar demands that "any PCRA petition,


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including   a   second or subsequent petition, [] be filed within one year of the

date that the petitioner's judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement      .   .   .   is   applicable." Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A.                  §   9545(b).   Further,

since the time -bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of           a   petition before we are

able to consider any of the underlying claims.             Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering     untimely PCRA petitions.           See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that "given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner "); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475 -476                    (Pa. 2003).

      In the case at bar, since Appellant did not file         a   direct appeal from his

judgment of sentence, his judgment of sentence became final at the end of

the day on April 7, 2012, which was 30 days after Appellant was sentenced

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in open    court and the time for filing       a   direct appeal to this Court expired. 42

Pa.C.S.A.    §   9545(b)(3)      ( "A   judgment becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States     ...   ,   or at the expiration of time for seeking the review "); see

also Pa.R.A.P. 903(a). The              PCRA   explicitly requires that    a   petition be filed

"within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A.

§    9545(b)(1). Therefore, Appellant had until April 7, 2013 to file                   a   timely

PCRA     petition.   42 Pa.C.S.A.        §   9545(b)(1).      As Appellant did not file his

current petition until December 14, 2015, the current petition                    is   manifestly

untimely and the burden thus fell upon Appellant to plead and prove that

one of the enumerated exceptions to the one -year time -bar applied to his

case. See 42 Pa.C.S.A.          §   9545(b)(1); Commonwealth v. Perrin, 947 A.2d

1284, 1286 (Pa. Super. 2008) (to properly invoke                   a   statutory exception to

the one -year time -bar, the PCRA demands that the petitioner properly plead

and prove all required elements of the relied -upon exception).

        Appellant did not attempt to plead any exception to the PCRA's one -

year time -bar. Thus, Appellant's petition             is   time -barred and our "courts are

without jurisdiction to offer [Appellant] any form of relief." Commonwealth

v.   Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the

PCRA     court's order dismissing Appellant's second PCRA petition.

        Appellant's "Motion to Stay and Abeyance" denied.                      Order affirmed.

Jurisdiction relinquished.


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J-S88006-16


Judgment Entered.




J   seph D. Seletyn,
Prothonotary


Date: 1/17/2017




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