J-S42044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

SAMAD TAUFEEQ ROBINSON

                           Appellant                  No. 1903 WDA 2015


                Appeal from the PCRA Order November 24, 2015
         in the Court of Common Pleas of Erie County Criminal Division
                       at No(s): CP-25-CR-0001777-2008

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 12, 2016

        Appellant, Samad Taufeeq Robinson, appeals pro se from the order of

the Erie County Court of Common Pleas, denying his second Post Conviction

Relief Act1 (“PCRA”) petition. Appellant claims the court imposed an unduly

harsh and manifestly excessive sentence that violates the fundamental

norms underlying the sentencing code. He contends he is serving an illegal

sentence. We affirm.

        On January 6, 2009, Appellant pleaded guilty to count 3, persons not

to possess, use, manufacture, control, sell or transfer firearms2 and count 4,

the manufacture, delivery, or possession with intent to manufacture or



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 6105(a)(1).
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deliver, a controlled substance.3 On March 2, 2009, he was sentenced to 12

to 24 months’ imprisonment for persons not to possess firearms consecutive

to his sentence of 36 months to 72 months’ imprisonment for possession

with intent to deliver.    Appellant did not file post-sentence motions or a

direct appeal.4 On January 6, 2010, Appellant filed a pro se PCRA petition.

Counsel was appointed and filed a “no merit letter.” On March 1, 2010, the

court denied the PCRA petition.

        On October 29, 2015, pro se Appellant filed his second PCRA petition.

On November 3, 2015, the PCRA court filed it notice of intent to dismiss the

petition pursuant to Pa.R.Crim.P. 907. Appellant filed a notice of appeal on

November 9, 2015.5        On November 24, 2015, the PCRA court denied the

PCRA petition.



3
    35 Pa.S. § 780-113(A)(30).
4
  Appellant’s judgment of sentence became final on April 1, 2009. See 42
Pa.C.S. § 9545(b)(3) (providing “a judgment 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 the review[ ]”). Appellant had until April 1, 2010, to file his
PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must
be filed within one year of date judgment becomes final). Therefore,
because he filed his PCRA petition on October 29, 2015, his petition is
facially untimely.
5
   Although Appellant's notice of appeal was premature when filed, we will
regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.



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J-S42044-16

      Appellant raises the following issues for our review, reproduced

verbatim:

         1. Appellant is appealing the order of the court dated
         November 2nd 2015 in which denied Appellant PCRA
         Petition. . ,
         2. Appellant is appealing the fact that this court indicated
         that defendant’s sentencing issue’s is meritless. . ,

         3. Appellant is appealing the fact that he is serving an
         illegal sentence and an illegal sentence issue is
         nonwaiveable. . ,

         4. Appellant is appealing the fact that Judge Connelly lack
         jurisdiction to answer appellant’s PCRA, where Judge
         Garhart was appellant’s trial Judge . . ,

         5. Appellant is appealing the court Order dismissing his
         PCRA without conducting a hearing as required by law . . ,

         6. Appellant is appealing the fact he is serving an illegal
         Sentence . . ,

Appellant’s Brief at 1.

      As a prefatory matter, we consider whether the instant PCRA petition

is timely.   The timeliness of a PCRA petition is a threshold question that

implicates the jurisdiction of a court to consider the merits of the relief

requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).

         To be timely, a PCRA petition must be filed within one year
         of the date that the petitioner’s judgment of sentence
         became final, unless the petition alleges and the petitioner
         proves one or more of the following statutory exceptions:



3 (Pa. Super. 2012) (accepting premature notice of appeal filed after entry
of Rule 907 Notice but before final order dismissing PCRA petition).




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           (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. § 9545(b)(1).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any
        of the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
        day requirement of Section 9545(b) if he or she fails to
        explain why, with the exercise of due diligence, the claim
        could not have been filed earlier.

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (some

citations omitted and emphasis added).

     In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007).

this Court recognized:

        [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. . . . [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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Id. at 592 (quotation marks and citations omitted).

     Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement.    See Marshall, 947 A.2d at 719.        Appellant’s

legality of the sentence claim was raised in an untimely PCRA petition, thus

depriving the court of jurisdiction over the claim. See Fowler, 930 A.2d at

592. Appellant is not entitled to relief.6 See Marshall, 947 A.2d at 719;

Fowler, 930 A.2d at 592.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2016




6
  We note that the PCRA court denied the PCRA petition finding the issues
raised were meritless. “We may affirm the trial court on any ground.”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).



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