J-S09045-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD RAYMOND ALLEN

                            Appellant                 No. 1288 MDA 2015


                    Appeal from the PCRA Order July 1, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001234-1975


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED FEBRUARY 02, 2016

        Richard Raymond Allen (“Appellant”) appeals from the order entered in

the Lancaster County Court of Common Pleas, which dismissed his petition

for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1      We

affirm.

        On July 23, 1975, following an oral guilty plea colloquy, Appellant pled

guilty to murder, generally. N.T., 7/23/1975, at 16. In exchange for the

plea, the Commonwealth agreed not to seek the death penalty. Id. at 15.

On July 25, 1975, the trial court found Appellant guilty of murder in the first

degree2 and sentenced him to life in prison.       After hearing several post-

____________________________________________


1
    42 Pa.C.S. § 9541-9546.
2
    18 Pa.C.S. § 2502(a).
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sentence motions, the trial court re-sentenced Appellant to life in prison on

February 4, 1977. Appellant appealed, and this Court affirmed Appellant’s

judgment of sentence on December 7, 1979.          Our Supreme Court denied

Appellant’s petition for allowance of appeal on March 28, 1980.      Appellant

did not file a petition for allowance of appeal with the Supreme Court of the

United States.

       Appellant filed petitions for collateral relief on December 26, 1980,

August 8, 1981, and October 8, 1997.3 The courts did not grant Appellant

relief. On December 22, 2014, Appellant filed a “Petition for Writ of Habeas

Corpus Seeking Post Conviction Relief,” which is the subject of this appeal.

The PCRA court treated Appellant’s petition as a PCRA petition 4 and issued a

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition

without a hearing. On July 1, 2015, the PCRA court dismissed Appellant’s

petition. On July 23, 2015, Appellant timely filed a notice of appeal.

       Appellant raises the following issues for our review:

          DID THE [TRIAL] COURT ABUSE ITS DISCRETION BY
          DENYING []APPELLANT’S [PCRA] PETITION BECAUSE THE
          COURT DETERMINED THAT THE REQUEST FOR RELIEF
          WAS UNTIMELY IN NATURE ?

____________________________________________


3
 Appellant’s first two petitions were filed pursuant to the Post Conviction
Hearing Act.
4
 “[A]ny motion filed after the finality of a sentence that raises an issue that
can be addressed under the PCRA is to be treated as a PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super.2013).



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         DOES THE RECORD SUPPORT [] APPELLANT’S CLAIM THAT
         HE DID AGREE TO ENTER A GUILTY PLEA TO MURDER,
         NOT TO EXCEED MURDER IN THE 3RD DEGREE AND THAT
         THE RECORD SHOWS THIS TO BE CORRECT ?

         DOES THE RECORD SHOW THAT [] APPELLANT WAS
         INCORRECTLY SENTENCED TO MURDER IN THE 1ST
         DEGREE INSTEAD OF MURDER IN THE 3RD DEGREE ?

Appellant’s Brief at 1.

      Before we address the merits of Appellant’s claims, we must determine

whether his PRCA petition was timely.     The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).      “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);


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see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

             (i) the failure to raise the claim 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).           Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition   to    avoid   “serial   requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                   A second or

subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”         Commonwealth v. Hawkins, 953 A.2d 1248, 1251


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(Pa.2006). Further, in a second or subsequent post-conviction proceeding,

“all issues are waived except those which implicate a defendant’s innocence

or which raise the possibility that the proceedings resulting in conviction

were so unfair that a miscarriage of justice which no civilized society can

tolerate occurred.”    Commonwealth v. Williams, 660 A.2d 614, 618

(Pa.Super.1995).

     Here, Appellant’s judgment of sentence became final in 1980, when

Appellant’s time for seeking review with the Supreme Court of the United

States expired.    See Monaco, supra.     Appellant filed the instant pro se

PCRA petition over thirty-four years later, on December 22, 2014. Thus, his

PCRA petition is facially untimely, and we must determine whether Appellant

has pled and proved any of the exceptions to the PCRA time limitation. See

42 Pa.C.S. § 9545(b)(1).

     Appellant’s petition does not claim, plead, or prove any of the

exceptions to the PCRA time limitation. Thus, Appellant’s petition is time-

barred, and the PCRA court properly denied it. Accordingly, we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016

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