J-S88022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
               v.                                :
                                                 :
                                                 :
    GREGORY R. SAUNDERS                          :
                                                 :
                      Appellant                  :   No. 3743 EDA 2015

                Appeal from the PCRA Order November 24, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003314-2003


BEFORE:      OLSON, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY RANSOM, J.:                                   FILED JANUARY 31, 2017

        Appellant, Gregory R. Saunders, appeals from the order entered

November 24, 2015, denying as untimely his third 1 petition filed under the

Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

        Following a jury trial, Appellant was convicted of criminal conspiracy,

burglary, robbery, and firearms not to be carried without a license. 2               In

November 2004, Appellant was sentenced to an aggregate term of

incarceration of nineteen to thirty-eight years. In December 2004, Appellant

filed a direct appeal.        This Court affirmed the judgment of sentence.

Commonwealth           v.   Saunders,          959   A.2d   468   (Pa.   Super.   2008)
____________________________________________


1
 Both the Appellant and the PCRA court erroneously refer to the underlying
petition as Appellant’s second PCRA petition.
2
    18 Pa.C.S. §§ 903(a)(1), 3502(a), 3701(a)(2), 6106(a)(1), respectively.


*
    Retired Senior Judge assigned to the Superior Court.
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(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with the Pennsylvania Supreme court.

       In December 2007, Appellant filed a petition for collateral relief, which

was denied as premature. Appellant did not file an appeal. In September

2008, Appellant filed his first PCRA petition, which was dismissed by this

Court for failure to file a brief. Appellant’s second PCRA petition was filed in

May     2012,    which    was     denied       as   untimely;   this   Court   affirmed.

Commonwealth v. Saunders, 60 A.3d 162 (Pa. Super. 2013), appeal

denied, 72 A.3d 603 (Pa. 2013), cert. denied, 134 S. Ct. 944 (Jan. 13,

2014).

       In December 2014, Appellant pro se filed the instant petition for

collateral relief.   The PCRA court appointed counsel; however, following a

Grazier3 hearing Appellant was permitted to proceed pro se. In November

2015, the PCRA court dismissed Appellant’s petition, and he timely appealed.

       Appellant raises the following issues:

       1. Did the PCRA court err in failing to review Appellant’s federal
          actual innocence/miscarriage of justice claim?

       2. Did the PCRA court err in failing to review Appellant’s illegal
          sentence claim, as, an illegal sentence cannot be waived?

Appellant’s Brief at 7.




____________________________________________


3
    Commonwealth v. Grazier, 713 A.2d 81 (1998).



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     The PCRA court dismissed Appellant’s petition without a hearing, and it

appears from the record that proper Pa.R.Crim.P. 907 notice was not sent.

There is no absolute right to an evidentiary hearing. See Commonwealth

v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008).         On appeal, we

examine the issues raised in light of the record “to determine whether the

PCRA court erred in concluding that there were no genuine issues of material

fact and denying relief without an evidentiary hearing.”      Id. at 1264.

Appellant does not challenge the lack of notice. Furthermore, “our Supreme

Court has held that where the PCRA petition is untimely, the failure to

provide such notice is not reversible error.” Commonwealth v. Davis, 916

A.2d 1206, 1208 (Pa. Super. 2007) (citing Commonwealth v. Pursell, 749

A.2d 911, 917 n. 7 (2000)). Accordingly, Appellant is due no relief on this

ground.

     The standard of review regarding an order denying a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.   Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).      We afford the court’s factual findings

deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

     Before considering Appellant’s claims, we address the timeliness of his

petition, as it implicates our jurisdiction and may not be altered or

disregarded in order to address the merits of his claim. Commonwealth v.

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Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, all petitions

seeking collateral relief must be filed within one year of the date the

judgment of sentence becomes final.              Id.   There are three statutory

exceptions:

       (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 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. § 9545(b)(1)(i)-(iii).         Additionally, any petition attempting to

invoke one of these exceptions “shall be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant’s petition is untimely.4        Thus, Appellant was required to

plead and prove an exception to the PCRA timeliness requirements.

Appellant does not dispute that his petition is untimely; rather, Appellant

____________________________________________


4
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on July 20, 2008; thirty days after this Court affirmed the
judgment of sentence. See § 9545(b)(3) (a judgment of sentence becomes
final at the conclusion of direct review or the expiration of the time for
seeking review). Appellant’s current petition, filed December 10, 2014, is
approximately six years late.



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acknowledges that he must avail himself of one of the exceptions set forth in

section 9545(b)(1)(i)-(iii) in order for this Court to have jurisdiction to reach

the merits of his claims.     Bennett, 930 A.2d at 1267 (stating PCRA time

limitations implicate our jurisdiction and may not be altered or disregarded

to address the merits of the petition).

      In his PCRA petition Appellant asserts that his petition meets the after-

discovered facts exception found at 42 Pa.C.S. § 9545(b)(1)(ii). To establish

this exception, a petitioner must prove that the facts supporting his claim

were (1) unknown to him and (2) could not have been ascertained

previously by the exercise of due diligence. Bennett, 930 A.2d at 1270-72.

Due diligence requires that the petitioner make reasonable steps to protect

his own interest.      Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.

Super. 2001).

      Appellant asserts that his co-defendants would now testify that

Appellant was not involved in the crime. Appellant provides no explanation

as to why the testimony could not have been ascertained previously, in a

timely matter. Furthermore, Appellant does not attach any documentation

or   evidence   to   substantiate   this claim   as required   by Pa.R.Crim.P.

902(a)(12)(b).       Thus, Appellant’s assertion does not satisfy the after-

discovered facts exception.

      Appellant next challenges the legality of his sentence. Although illegal

sentencing issues cannot be waived, they still must be presented in a timely


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PCRA petition.    Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999)

(“Although 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.”).

      Accordingly, the PCRA court lacked jurisdiction to entertain Appellant’s

claim and did not err in dismissing Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/2017




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