J-A03029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AMBROSE J. SAMPLE, II                      :
                                               :
                       Appellant               :   No. 1174 WDA 2018

               Appeal from the PCRA Order Entered July 25, 2018
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0000107-1999


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                                  FILED JUNE 7, 2019

       Appellant, Ambrose J. Sample, II, appeals pro se from the order denying

his serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. We affirm.

       On December 29, 1998, Appellant twice discharged a shotgun, thereby

killing the victim who was approximately 100 feet away.          Appellant was

arrested and charged with criminal homicide and first-degree murder.1 On

October 8, 1999, a jury convicted Appellant of third-degree murder.2          On

December 6, 1999, the trial court sentenced Appellant to serve a term of

incarceration of twelve to twenty-five years.


____________________________________________


1   18 Pa.C.S. §§ 2501 and 2502(a), respectively.

2   18 Pa.C.S. § 2502(c).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On direct appeal, this Court affirmed Appellant’s judgment of sentence

on March 13, 2001, and his petition for allowance of appeal with the

Pennsylvania    Supreme     Court   was    denied   on    August    8,   2001.

Commonwealth v. Sample, 640 WDA 2000, 777 A.2d 508 (Pa. Super. 2001)

(unpublished memorandum), appeal denied, 784 A.2d 116 (Pa. 2001).

Appellant filed his first PCRA petition on May 13, 2002, which the PCRA court

dismissed on November 21, 2002. On January 5, 2005, this Court affirmed

the PCRA court’s determination, and our Supreme Court denied Appellant’s

petition for allowance of appeal.   Commonwealth v. Sample, 2222 WDA

2002, 872 A.2d 1274 (Pa. Super. 2005) (unpublished memorandum), appeal

denied, 881 A.2d 819 (Pa. 2005).

      On August 31, 2007, Appellant filed a second PCRA petition. The PCRA

court denied relief on November 27, 2007. Appellant did not file an appeal.

      On April 14, 2008, Appellant filed a third PCRA petition, which the PCRA

court denied. This Court affirmed the order of the PCRA court on December 2,

2008, and our Supreme Court denied allowance of appeal on May 20, 2009.

Commonwealth v. Sample, 907 WDA 2008, 965 A.2d 301 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 971 A.2d 493 (Pa. 2009).

      Appellant filed the instant PCRA petition, his fourth, on March 22, 2018.

On July 25, 2018, the PCRA court dismissed the petition as untimely filed.

This timely appeal followed. The PCRA court did not direct Appellant to file a

Pa.R.A.P. 1925(b) statement. The PCRA court filed a one-paragraph opinion


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pursuant to Pa.R.A.P. 1925(a), in which it relies upon its notice of intent to

dismiss.

      Appellant presents the following issue for our review:

      Whether 18 Pa.C.S. § 2502(c) is constitutionally void for
      vagueness in violation of Article I, section 9, of the Pennsylvania
      Constitution, and the 5th and 14th Amendments of the United
      States Constitution?

Appellant’s Brief at 4.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”    Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)).    This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.

2016).     The PCRA court’s findings will not be disturbed unless there is no

support for them in the certified record. Commonwealth v. Lippert, 85 A.3d

1095, 1100 (Pa. Super. 2014).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). 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.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and

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jurisdictional in nature, and the court may not ignore it in order to reach the

merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651

(Pa. Super. 2013).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and

(iii), is met.3 A petition invoking one of these exceptions must be filed within

one year of the date the claim could have been presented.              42 Pa.C.S.

§ 9545(b)(2).4


____________________________________________


3   The exceptions to the timeliness requirement are:

       (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)(i), (ii), and (iii).
4 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section,



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       As previously noted, our review of the record reflects that Appellant’s

judgment of sentence was affirmed by this Court on March 13, 2001. Sample,

640 WDA 2000, 777 A.2d 508. On August 8, 2001, our Supreme Court denied

Appellant’s petition for allowance of appeal.       Sample, 784 A.2d 116 (Pa.

2001). However, Appellant did not file a petition for writ of certiorari with the

United States Supreme Court. Accordingly, Appellant’s judgment of sentence

became final on November 6, 2001, ninety days after the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal and the

time for filing a petition for review with the United States Supreme Court

expired. See 42 Pa.C.S. § 9545(b)(3) (providing that “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.”); U.S.Sup.Ct.R. 13. Thus,

the instant PCRA petition, filed on March 22, 2018, is patently untimely.

       As stated, if a petitioner does not file a timely PCRA petition, his petition

may nevertheless be received under any of the three limited exceptions to the

timeliness requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner

asserts one of these exceptions, he must file his petition within one year of

the date that the exception could be asserted. 42 Pa.C.S. § 9545(b)(2).



____________________________________________


December 24, 2017, or thereafter. Because Appellant filed the instant petition
on March 22, 2018, we will apply the amendment.


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      Appellant does not specifically allege that the delay in filing his PCRA

petition was due to interference by governmental officials, that the facts

underlying his petition were unknown to him and could not have been

ascertained by the exercise of due diligence, or that the right he has asserted

is a retroactive constitutional right. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Thus,

Appellant fails to invoke any of the timeliness exceptions contained in the

PCRA. Therefore, the instant PCRA petition remains time-barred.

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the issues

presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,

398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear

untimely petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/2019




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