J-S75041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
              v.                            :
                                            :
JAMES EVERETT, III,                         :
                                            :
                    Appellant               :            No. 228 EDA 2016

                  Appeal from the PCRA Order December 4, 2015
              in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0100251-1986

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 23, 2016

        James Everett, III (“Everett”), appeals, pro se, from the Order

dismissing his sixth Petition for relief filed pursuant to the Post Conviction

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

        On April 4, 1987, following a jury trial, Everett was convicted of first-

degree murder and possession of an instrument of crime.1          The trial court

sentenced Everett to a term of life in prison for the first-degree murder

conviction, and a concurrent term of 2½ to 5 years for possessing an

instrument of crime. This Court affirmed Everett’s judgment of sentence on

November 2, 1988.       See Commonwealth v. Everett, 555 A.2d 244 (Pa.

Super. 1988) (unpublished memorandum).

        On May 18, 2012, Everett, pro se, filed the instant PCRA Petition, his

sixth. Everett subsequently filed two Amended Petitions, one in July 2012,



1
    18 Pa.C.S.A. §§ 2502(a), 907.
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and one in August 2013. The PCRA court issued a Pa.R.Crim.P. 907 Notice

of Intent to Dismiss, and Everett filed a Response.           The PCRA court

dismissed Everett’s Petition as untimely filed on December 4, 2015.2

Thereafter, Everett filed the instant timely appeal.

      On appeal, Everett raises the following questions for our review:

      I. Whether the [PCRA] court[’]s 43[-]month inordinate[,]
      inexcusable delay in deciding [Everett’s] Martinez v. Ryan[,
      132 S. Ct. 1309 (2012)3] claim of initial-review collateral
      counsel[’]s ineffectiveness[,] causing [the] default of [a]
      substantive claim of trial/[appellate] counsel’s ineffectiveness,
      therein prejudiced [Everett’s] right to federal review, where the
      [PCRA] court[’]s review/analysis failed to establish by record
      evidence of facts that [Everett’s] claim did not fit within the
      Martinez holding for collateral review[?]

      II. Whether the [PCRA] court[,] in its decision to govern
      [Everett’s]   claim   of   illegal/unlawful   sentence   of   life
      imprisonment, where the [PCRA] court[’]s [] lack of statutory
      authority, and/or subject matter/persona[l] jurisdiction to
      impose, under the time bar provision was/is in violation of due
      process, and unsupported by case law [and] record evidence to
      deny relief, where [a] claim of illegal/unlawful sentence is non-
      waivable and can be raised at any time[?]


2
  The PCRA court noted that its Order dismissing Everett’s PCRA Petition as
untimely filed “also covers [Everett’s] Writs of Habeas Corpus and all of his
subsequent petitions, motions and responses, which pertain to [Everett’s]
current PCRA [P]etition and which have been filed to date with [the PCRA]
court.” PCRA Court Memorandum and Order, 12/4/15, at 8.
3
  In Martinez, the United States Supreme Court held that “[w]here, under
state law, claims of ineffective assistance of trial counsel must be raised in
an initial-review collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” Martinez, 132 S. Ct.
at 1320 (emphasis added).



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Brief for Appellant at ii (footnote added).

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of the record. We will not disturb a PCRA
      court’s ruling if it is supported by evidence of record and is free
      of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, any PCRA petition, “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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 the

review.”    Id. § 9545(b)(3).        The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.        Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Everett’s judgment of sentence became final in December 1988, when

the time for filing a petition for allowance of appeal with the Pennsylvania

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P.

1113. Because Everett filed the instant Petition nearly three decades later,

his Petition is facially untimely.




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     However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

     In his first claim, Everett invokes the newly-recognized constitutional

right exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii),4 and claims that

the United States Supreme Court decision in Martinez entitles him to

redress on his previously raised ineffective assistance of counsel claims.

Brief for Appellant at 8-11. Everett claims that he has not been granted the

review to which the Martinez decision entitles him. Id. at 12. Additionally,

Everett asserts that the Martinez decision set forth a substantive rule,

which applies retroactively. Id. at 13-16.

     This Court has specifically considered the application of Martinez to

Pennsylvania PCRA proceedings, and has determined that Martinez does

not satisfy the newly-recognized constitutional right exception.         See

Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013) (stating

that “[w]hile Martinez represents a significant development in federal


4
  In order to successfully invoke the newly-recognized constitutional right
exception, a petitioner must plead and prove that “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)(iii).



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habeas corpus law, it is of no moment with respect to the way Pennsylvania

courts apply the plain language of the time bar set forth in [S]ection

9545(b)(1) of the PCRA.”).          Thus, Everett is not entitled to relief on this

claim.5

       In his second claim, Everett challenges the                    lack of statutory

authorization for his sentence. Brief for Appellant at 19-21. Everett claims

that, at the time of his sentencing, the trial court could not impose a term of

life in prison without first designating his case as a capital case. Id. at 21.

       Everett’s claim challenges the legality of his sentence, and such a

claim is cognizable under the PCRA. See 42 Pa.C.S.A. § 9542 (stating that

the PCRA “provides for an action by which … persons serving illegal

sentences may obtain collateral relief.”); Commonwealth v. Rivera, 95

A.3d   913,     915   (Pa.   Super.     2014)    (stating    that    “[i]f   no   statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction”) (citation omitted).            However, a challenge to the

legality   of   a   sentence   is    still   subject   to   the     PCRA’s   jurisdictional

requirements.       See Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.

Super. 2005) (en banc) (stating 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

5
  To the extent that Everett claims that his counsel was ineffective, we note
that “a claim of ineffective assistance of counsel does not save an otherwise
untimely petition for review on the merits.” Commonwealth v. Fahy, 737
A.2d 214, 223 (Pa. 1999).


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PCRA petition.”); see also Commonwealth v. Infante, 63 A.3d 358, 365

(Pa. Super. 2013) (stating that “[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.”) (citation omitted).

      As   previously   stated,   Everett’s   Petition   is   facially   untimely.

Additionally, Everett failed to establish an exception to the PCRA’s timeliness

requirement.    Accordingly, we lack jurisdiction to consider the merits of

Everett’s challenge to the legality of his sentence. See Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007) (stating that when a petitioner

challenges the legality of his sentence in an untimely PCRA petition, “the

claim is not waived, but the jurisdictional limits of the PCRA itself render the

claim incapable of review.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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