J-S73010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KRISTA DANIELLE HENRY                      :
                                               :
                      Appellant                :   No. 617 MDA 2017

                    Appeal from the PCRA Order March 7, 2017
    In the Court of Common Pleas of Centre County Criminal Division at No(s):
                             CP-14-CR-0001189-2012


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

MEMORANDUM BY OLSON, J.:                             FILED DECEMBER 11, 2017

        Appellant, Krista Danielle Henry, appeals from the order entered on

March 7, 2017, dismissing her first petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

        On February 4, 2013, Appellant pleaded guilty to three counts of

delivery of a controlled substance.1           On June 25, 2013, the trial court

sentenced Appellant to serve an aggregate term of three to six years in

prison for her convictions.       Appellant did not file a direct appeal from her

judgment of sentence.

        On May 19, 2016, Appellant filed a pro se PCRA petition and claimed

that she was entitled to relief because the trial court illegally sentenced her

____________________________________________


1   35 P.S. § 780-113(a)(30).



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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to a mandatory minimum term of imprisonment under 18 Pa.C.S.A. § 7508.

See Appellant’s Pro Se PCRA Petition, 5/19/16, at 4. Within Appellant’s pro

se PCRA petition, Appellant acknowledged that her petition was facially

untimely and that her illegality of sentencing claim arose in 2013 – when the

United States Supreme Court issued Alleyne v. United States, ___ U.S.

___, 133 S.Ct. 2151 (2013) and held that, where an “aggravating fact”

increases a mandatory minimum sentence, “the fact is an element of a

distinct and aggravated crime. [The fact] must, therefore, be submitted to

the jury and found beyond a reasonable doubt.”         Alleyne, 133 S.Ct. at

2162-2163.     However, Appellant claimed that her petition was timely

because she was unaware of Alleyne and she only learned of the opinion

later, when she read “[a] newspaper article . . . [that] referenc[ed] a similar

case where the defendant’s sentence had been overturned based on

[Alleyne].” Appellant’s Pro Se PCRA Petition, 5/19/16, at 4.

      The PCRA court appointed counsel to represent Appellant in the

underlying proceedings and, on November 8, 2016, counsel filed a “motion

to correct illegal sentence” on Appellant’s behalf. Within the filing, counsel

claimed only that the trial court must vacate Appellant’s sentence, as the

sentence is illegal. See “Motion to Correct Illegal Sentence,” 11/8/16, at 1-

2.

      On January 10, 2017, the trial court heard oral argument on the

“motion to correct illegal sentence” and, on January 26, 2017, the PCRA

court issued an opinion and order, where it explained that it construed

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Appellant’s “motion to correct illegal sentence” to be an untimely amended

petition under the PCRA. PCRA Court Opinion and Order, 1/26/17, at 2-3.

The PCRA court thus provided Appellant with notice that it intended to

dismiss her PCRA petition in 20 days, without holding a hearing. PCRA Court

Order, 1/26/17, at 3; Pa.R.Crim.P. 907(1). The PCRA court finally dismissed

Appellant’s PCRA petition on March 7, 2017. PCRA Court Order, 3/7/17, at

1.

        Appellant filed a timely notice of appeal from the PCRA court’s order.

Appellant raises two claims on appeal:

            [1.] Did the [PCRA] court err in construing Appellant’s
            motion to modify sentence as a petition under the Post
            Conviction Relief Act?

            [2.] Did the [PCRA] court err by declining to vacate
            [Appellant’s] clearly[] illegal sentence?

Appellant’s Brief at 4.

        On appeal, Appellant claims that the PCRA court erred in construing

her self-styled “motion to correct illegal sentence” as an amended PCRA

petition.     According to Appellant, her illegal sentencing claim cannot be

waived; therefore, Appellant claims, the PCRA cannot foreclose her right to

obtain relief from serving her illegal sentence.               Appellant’s Brief at 9.

Appellant’s     contention    fails   and      the   PCRA   court   properly   dismissed

Appellant’s patently untimely PCRA petition.2
____________________________________________


2   Within Appellant’s brief, Appellant declares:
(Footnote Continued Next Page)


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      We “review an order granting or denying PCRA relief to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.”   Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003).

      The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies . . . including habeas corpus and coram

nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.

1997).     Thus, under the plain terms of the PCRA, “if the underlying

substantive claim is one that could potentially be remedied under the PCRA,

that claim is exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d

1231, 1233 (Pa. Super. 2004) (emphasis in original).



(Footnote Continued) _______________________


         Appellant is under no illusion[] about her prospects for
         success in this Court. Because the [Pennsylvania] Supreme
         Court has, apparently, never held that the [PCRA] provides
         the exclusive means for correcting an illegal sentence where
         no direct appeal was taken, Appellant seeks merely to
         preserve the issue of her baldly illegal sentence in this Court
         for her petition for allowance of appeal to the Pennsylvania
         Supreme Court.

Appellant’s Brief at 10.



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      Within her “motion to correct illegal sentence” Appellant claims that

she is entitled to relief because her sentence is illegal. However, the PCRA

undoubtedly encompasses Appellant’s claim, as the claim concerns “matters

affecting [Appellant’s] conviction [or] sentence.”          Commonwealth v.

Judge, 916 A.2d 511, 520 (Pa. 2007), quoting Coady v. Vaughn, 770 A.2d

287, 293 (Pa. 2001) (Castille, J., concurring); see also 42 Pa.C.S.A. § 9542

(“[the PCRA] provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief”).

      Appellant’s claim thus falls under the rubric of the PCRA and, since the

PCRA encompasses Appellant’s claim, Appellant “can only find relief under

the   PCRA’s     strictures.”   Pagan,    864   A.2d   at    1233;   see   also

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)

(“[petitioner’s legality of sentence] claim is cognizable under the PCRA . . . .

[Thus, petitioner’s] ‘motion to correct illegal sentence’ is a PCRA petition and

cannot be considered under any other common law remedy”).

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

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

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,


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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).

     The trial court sentenced Appellant on June 25, 2013 and Appellant did

not file a direct appeal to this Court.    Thus, for purposes of the PCRA,

Appellant’s judgment of sentence became final at the end of the day on July

25, 2013, when the time for filing a notice of appeal to this Court expired.

42 Pa.C.S.A. § 9545(b)(3).    As Appellant did not file her current petition

until May 19, 2016, the current petition is manifestly untimely and the

burden thus fell upon Appellant to plead and prove that one of the

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enumerated exceptions to the one-year time-bar applied to her 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).

       On appeal, Appellant does not claim that any of the statutory

exceptions to the PCRA’s one-year time-bar apply to her case.            See

Appellant’s Brief at 1-11. Thus, since Appellant’s PCRA petition is manifestly

untimely and since Appellant did not argue that any of the statutory

exceptions to the one-year time-bar apply, our “courts are without

jurisdiction to offer [Appellant] any form of relief.” Commonwealth v.

Jackson, 30 A.3d 516, 523 (Pa. Super. 2011).        We, therefore, affirm the

PCRA court’s March 7, 2017 order, dismissing Appellant’s PCRA petition

without a hearing.3

       Order affirmed. Jurisdiction relinquished.

____________________________________________


3 Although Appellant claims that she is entitled to relief because her claim
involves a challenge to the legality of her sentence, this contention is
unavailing. We have repeatedly held that “a court may entertain a challenge
to the legality of the sentence so long as the court has jurisdiction to hear
the claim. In the PCRA context, jurisdiction is tied to the filing of a timely
PCRA petition.” Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super.
2007) (internal quotations, citations, and corrections omitted) (some
internal capitalization omitted); see also Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999) (“[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”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




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