J-S63014-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :         PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
ROBERT EAK,                             :
                                        :
                 Appellant              :    No. 264 EDA 2015

              Appeal from the PCRA Order November 20, 2014,
                   Court of Common Pleas, Pike County,
              Criminal Division at No. May Term, 1978, No. 29

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 05, 2015

      Appellant, Robert Eak (“Eak”), appeals pro se from the order entered

on November 20, 2014 by the Court of Common Pleas of Pike County,

Criminal Division, dismissing his fifth petition filed pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46, as untimely. We

affirm.

      We summarize the relevant facts and procedural history of this case as

follows. On March 29, 1979, a jury convicted Eak of second-degree murder,

robbery, and unlawful carrying of firearms. The trial court sentenced Eak to

life imprisonment on the second-degree murder charge and consecutive

prison sentences totaling twelve and a half to twenty-five years of

incarceration on the remaining charges.      On July 1, 1983, the Supreme

Court affirmed Eak’s judgment of sentence.
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        In 1983, 1984, and 1996, Eak filed three separate PCRA petitions,

each of which he later withdrew. On October 13 1999, Eak filed his fourth

PCRA petition, which the PCRA court denied as untimely on June 29, 2000.

On June 5, 2001, this Court affirmed the dismissal of Eak’s fourth PCRA

petition.   On November 10, 2014, Eak filed the instant PCRA petition, his

fifth, which the PCRA court once again denied as untimely on November 20,

2014.

        On December 22, 2014, Eak filed a timely pro se notice of appeal. The

next day, the PCRA court ordered Eak to file a concise statement of the

errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania

Rules of Appellate Procedure. On January 9, 2015, Eak filed a timely pro se

Rule 1925(b) statement.

        Eak’s appellate brief is handwritten and difficult to both read and

understand. From what we are able to discern, Eak argues that he is eligible

for relief because the trial court lacked subject matter jurisdiction over his

case; his sentence is greater than the lawful maximum and therefore illegal;

and the trial court violated several of his rights under both the United States

and Pennsylvania Constitutions.

        Prior to determining the merits of Eak’s claims, we must determine

whether we have jurisdiction to decide his appeal. “Pennsylvania law makes

clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)



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(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which

the petitioner’s judgment became final, unless one of the three statutory

exceptions apply:

            (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.

42 Pa.C.S.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).     If a petition is untimely, and the

petitioner has not pled and proven any exception, “‘neither this Court nor

the trial court has jurisdiction over the petition.   Without jurisdiction, we

simply do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

      Eak’s instant PCRA petition is facially untimely and he does not contest

this determination. Accordingly, we are without jurisdiction to decide Eak’s



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appeal unless he pled and proved one of the three timeliness exceptions of

Section 9545(b)(1). See id. Here, Eak did not attempt to plead or prove

any of the timeliness exceptions of Section 9545(b)(1) in his PCRA petition. 1

See PCRA Petition, 11/10/14. As Eak failed to plead and prove an exception

under section 9545(b)(1), we are without jurisdiction to address the merits

of his appeal.2 See Derrickson, 923 A.2d at 468.

     Order affirmed.3




1
   On appeal, Eak asserts that the PCRA court should have addressed his
claims despite the untimeliness of his PCRA petition contending that his
several mental disorders prevented him from bringing his PCRA petition in a
timely manner. Even if Eak were correct, he did not raise this claim in his
PCRA petition and raises it now for the first time on appeal. See PCRA
Petition, 11/10/14. Therefore, Eak has waived this claim. See Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”). Moreover, such claim does not fall
within any of timeliness exceptions of section 9545(b)(1). See 42 Pa.C.S.A.
§ 9545(b)(1).
2
   Eak argues that issues involving the legality of sentence and subject
matter jurisdiction are not waivable. This Court, however, has held that
such claims do not overcome the timeliness requirements of the PCRA. See
Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007)
(“[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.”); Commonwealth v. Dickerson, 900 A.2d 407, 412
(Pa. Super. 2006) (holding that this Court lacked jurisdiction to decide claim
that the trial court lacked subject matter jurisdiction over appellant’s trial
because his PCRA petition was untimely).
3
    On August 10, 2015, Eak filed a motion seeking to preclude the
Commonwealth from filing a brief in this case because the Commonwealth
did not file its brief in a timely manner. Because we have determined that
we do not have jurisdiction over this appeal, we dismiss Eak’s motion as
moot.


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J-S63014-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/5/2015




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