J-S68023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA STRAYHORN                           :
                                               :
                       Appellant               :   No. 648 WDA 2019

              Appeal from the PCRA Order Entered March 27, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0013273-2015


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 20, 2019

        Joshua Strayhorn appeals from the order, entered in the Court of

Common Pleas of Allegheny County, dismissing as untimely his petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

We affirm.

        On February 8, 2017, Strayhorn entered a negotiated guilty plea to

third-degree murder, and the trial court sentenced him to 15 to 30 years’

imprisonment.1 Strayhorn did not file post-sentence motions or a direct

appeal.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1We note that Strayhorn has stated, incorrectly, that sentencing occurred on
February 28, 2017. The sentencing order is dated February 8, 2017. See
Appellant’s Brief. Strayhorn’s counsel also gives that incorrect date in the
counseled petition filed on February 8, 2019. See “Petition for Modification of
Relief,” 2/8/19, at 2.
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        On July 12, 2018, Strayhorn filed a pro se “Petition for Modification of

Relief.” The court treated this filing as a PCRA petition and appointed counsel

for Strayhorn. On February 8, 2019, counsel filed an amended petition, also

captioned as a “Petition for Modification of Relief,” and argued Strayhorn’s

petition was not a PCRA petition, and that Strayhorn was          Recidivism Risk

Reduction Incentive (RRRI)2 eligible, citing Commonwealth v. Cullen-

Doyle, 164 A.3d 1239 (Pa. 2017).3 See Petition for Modification of Relief,

2/8/19, at 3. The Commonwealth filed an answer, arguing the court should

construe the petition as a PCRA petition and dismiss the petition for lack of

jurisdiction.    See Commonwealth’s Answer to Post Conviction Relief Act

Petition, 3/1/19, at 2-3.

        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. When an action is cognizable under

the PCRA, the PCRA is the “sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose[.]” 42 Pa.C.S.A. § 9542. See Commonwealth v. Haun, 32 A.3d

697 (Pa. 2011); Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super.

2007).    See also Commonwealth v. Deaner, 779 A.2d 578 (Pa. Super.

____________________________________________


2   See 61 Pa.C.S.A. §§ 4501, et seq.

3 In Cullen-Doyle, the Pennsylvania Supreme Court held that that conviction
for first-degree burglary, by itself, did not disqualify defendant from eligibility
for reduced sentencing under the RRRI Act.

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2001) (collateral petition that raises issue that PCRA statute could remedy is

considered PCRA petition). It is axiomatic that all claims, including those

implicating the legality of a sentence or asserting a miscarriage of justice,

“must still first satisfy the PCRA’s time limits or one of the exceptions thereto.”

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).                     See also

Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)

(legality of sentence is cognizable issue under PCRA).

         Strayhorn’s claim, that the sentencing court’s failure to impose an RRRI

sentence, implicates the legality of the sentence, and, therefore, it is

cognizable under the PCRA. See Commonwealth v. Robinson, 7 A.3d 868,

871 (Pa. Super. 2010) (“[W]here the trial court fails to make a statutorily

required determination regarding a defendant's eligibility for an RRRI

minimum sentence as required, the sentence is illegal.”).        Accordingly, the

court properly construed his filing as a PCRA petition.

         In reviewing the propriety of an order granting or denying PCRA relief,

this Court is limited to determining whether the evidence of record supports

the determination of the PCRA court, and whether the ruling is free of legal

error.    Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).              Great

deference is granted to the findings of the PCRA court, and these finding will

not be disturbed unless they have no support in the certified record.

Commonwealth v. Wilson, 824 A.2d 331, 333 (Pa. Super. 2003). Further,

the timeliness of a post-conviction petition is jurisdictional. Commonwealth

v. Murray, 753 A.2d 201, 203 (Pa. 2000). Generally, a petition for PCRA

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relief, including a second or subsequent petition, must be filed within one year

of the date the judgment is final unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition, set forth at 42

Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii), is met. See Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545. “For

purposes of [the PCRA], a judgment [of sentence] 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.A. § 9545(b)(3).

      Here, the court sentenced Strayhorn on February 8, 2017. He did not

file a direct appeal, and thus his judgment of sentence became final on March

10, 2017, at the expiration of his 30-day appeal period. See Pa.R.A.P. 903(a).

Strayhorn had one year, or until March 10, 2018, to file his PCRA petition. 42

Pa.C.S.A. § 9545(b). Strayhorn’s pro se petition was filed on July 12, 2018,

over three months beyond the one-year jurisdictional time bar. His petition,

therefore, is facially untimely.    To overcome the jurisdictional time-bar,

Strayhorn was required to plead and prove an exception to the PCRA time

requirements.   See 42 Pa.C.S.A. §9545(b)(1).       He did not do so, instead

arguing that his filing should not have been viewed as a PCRA petition.

      Strayhorn’s petition was properly treated as a PCRA petition. Because

it is facially untimely, and because he has failed to plead and prove an

exception to the one-year time bar, we affirm the order dismissing his petition

as untimely. Murray, supra.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2019




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