J-S39035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MICHAEL JONES                           :
                                         :
                   Appellant             :   No. 33 EDA 2019

         Appeal from the PCRA Order Entered November 30, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0007421-2009


BEFORE:   GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED AUGUST 21, 2019

     Appellant, Michael Jones, appeals pro se from the order entered in the

Court of Common Pleas of Philadelphia County dismissing his second petition

filed under the Post Conviction Relief Act (“PCRA”), as untimely, without a

hearing. We affirm.

     The PCRA court sets forth the pertinent history of the case, as follows:

     On April 7, 2010, following a jury trial before [the trial court],
     defendant Michael Jones [hereinafter “Appellant”] was convicted
     of first-degree burglary (18 Pa.C.S. § 3502). On June 23, 2010,
     the court imposed a sentence of seven to fourteen years’
     incarceration in state prison. The court denied Appellant’s post-
     sentence motions on July 23, 2010.

     On July 26, 2010, Appellant filed a timely notice of appeal. On
     December 13, 2010, Appellant’s appeal was dismissed for failure
     to file a brief.

     Appellant thereafter filed a pro se petition under the [PCRA] on
     January 3, 2011, requesting reinstatement of his appellate rights.
     Appellant subsequently retained counsel, who filed an amended

____________________________________
* Former Justice specially assigned to the Superior Court.
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     PCRA petition on February 23, 2011.        On June 17, 2011,
     Appellant’s PCRA petition was granted, and his appellate rights
     were reinstated nunc pro tunc. On April 27 2012, the Superior
     Court affirmed Appellant’s judgment of sentence.

     Appellant subsequently filed [what is construed as his first] PCRA
     petition on May 10, 2012, as well as two amended pro se petitions.
     On May 13, 2013, [the court appointed counsel] to represent
     Appellant. On December 12, 2013, pursuant to Commonwealth
     v. Finley, 550 A.2d 213 (Pa.Super. 1988), [counsel] filed a letter
     stating there was no merit to Appellant’s claims for collateral
     relief. [Counsel] subsequently filed supplemental Finley letters
     on February 20, 2014, and March 13, 2014.

     On March 14, 2014, the court issued notice pursuant to
     Pa.R.Crim.P. 907 (“907 Notice”) of its intent to dismiss Appellant’s
     claims without an evidentiary hearing. Appellant filed a response
     to the court’s 907 Notice on March 24, 2014 (“907 Response”) and
     another response on April 28, 2014.          Counsel filed a final
     supplemental Finley letter on May 28, 2014. The PCRA court
     dismissed Appellant’s [first] petition on May 29, 2014. The
     Superior Court affirmed the dismissal on April 21, 2015, and on
     October 26, 2015, the [Pennsylvania] Supreme Court denied
     allocatur.

     On September 24, 2018, Appellant filed [the present PCRA
     petition, his second], in which he claimed that he was serving an
     illegal sentence. On October 4, 2018, the PCRA court found
     Appellant’s second petition untimely and issued a 907 Notice.
     Appellant submitted two 907 Responses on October 19, 2018, and
     November 20, 2018. Appellant did not claim an exception to the
     timeliness requirement in either response.

     On November 30, 2018, the PCRA court entered an order
     dismissing Appellant’s [second] petition as untimely. Appellant
     has now appealed the PCRA court’s dismissal of his [second]
     petition.


PCRA Court Opinion, 2/27/19, at 1-2.

     Appellant raises one question for our consideration:




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      Did trial counsel error [sic] sentencing Appellant to 7-14 years for
      burglary with nobody present after the Judge told the Appellant
      he was being sentenced using the sentencing matrix guideline
      score of burglary. The Appellant[‘s] sentence should reflect a
      gravity score of (7) seven which is 3 ½ to 7 years not 7 to 14
      years.

Appellant’s brief, at 2.

      “[A]n appellate court reviews the PCRA court's findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

All PCRA petitions, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final” unless an exception

to timeliness applies.     42 Pa.C.S.A. § 9545(b)(1).       “The PCRA's time

restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,

neither this Court nor the [PCRA] court has jurisdiction over the petition.

Without jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (internal citations and quotation marks omitted).

      As timeliness is separate and distinct from the merits of Appellant's

underlying claims, we first determine whether he has timely filed this PCRA

petition.   See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008)

(consideration of a claim separate from consideration of the claim’s

timeliness). A petitioner must meet the timeliness requirements of the PCRA,

even if the underlying claim is a challenge to the legality of the sentence. See

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality

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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”) (citation

omitted).

       As noted above, Appellant filed the instant petition on September 24,

2018, over six years after his judgment of sentence became final. As such,

the instant petition is facially untimely and, thus, subject to the statutory time-

bar of Section 9545(b)(1).

       Appellant can overcome the time-bar, however, if the present petition

alleges and proves one of the three exceptions set forth in Section

9545(b)(1)(i)-(iii) of the PCRA. The three narrow statutory exceptions to the

one-year time-bar are as follows: “(1) interference by government officials in

the presentation of the claim; (2) newly discovered facts; and (3) an after-

recognized constitutional right.” Commonwealth v. Brandon, 51 A.3d 231,

233-234 (Pa.Super. 2012)(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). A petition

invoking an exception to the time-bar must be filed within one year of the

date that the claim could have been presented.1            See 42 Pa.C.S.A. §

9545(b)(2). If the petition fails to invoke a valid exception to the PCRA time-


____________________________________________


1Effective December 24, 2018, the time in which to file a petition invoking
one of the three exceptions was extended from sixty days to one year. See
42 Pa.C.S.A. § 9545(b)(2). This amendment applies to claims arising one
year prior to the effective date of the amendment, i.e., arising December 24,
2017, or later. See Act 2018, Oct. 24, P.L. 894, No. 146, § 3. Because
Appellant filed the present PCRA petition on September 24, 2018, this
amendment applies.


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bar, courts are without jurisdiction to review the petition or provide relief. See

Spotz, 171 A.3d at 676.

      Because Appellant failed to plead or prove that he meets any of the

exceptions to the PCRA time-bar, the PCRA court properly concluded that his

petition was untimely and it had no jurisdiction to engage in merits review.

Therefore, we affirm the PCRA court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2019




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