J-S71018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ROBERT MILLER

                             Appellant                No. 3365 EDA 2016


              Appeal from the PCRA Order entered October 7, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0015857-2013


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 12, 2018

        Appellant, Robert Miller, appeals from the October 7, 2016 order entered

in the Court of Common Pleas of Philadelphia County, denying as untimely his

first petition for collateral relief pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           Because Appellant’s petition is

untimely on its face and he did not allege any exception to the PCRA’s one-

year time bar, we affirm.

        In its Rule 1925(a) opinion, the PCRA court explained:

        On March 11, 2014, [Appellant] entered a negotiated guilty plea
        to the charges of rape under 18 [Pa.C.S.A.] § 3121(a)(1), a felony
        of the first degree, and corruption of minors under 18 [Pa.C.S.A.]
        § 6301(a)(1)(i), a misdemeanor of the first degree.             As

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*   Retired Senior Judge assigned to the Superior Court.
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     negotiated, [Appellant] was sentenced to five to ten years
     incarceration and ten years sex offender probation to run
     consecutively. [Appellant] was also sentenced to a concurrent
     term of five years reporting probation on corruption of minors.

     ....

     On December 1, 2015, [Appellant] filed a [pro se] PCRA petition.
     On June 7, 2016, [Appellant’s counsel] filed an amended petition.
     On August 10, 2016, the Philadelphia District Attorney’s Office
     filed a response.      On September 16, 2016, the PCRA court
     ordered a Rule 907 notice to be sent to [Appellant] informing him
     of the court’s intent to dismiss his petition. On October 7, 2016,
     the PCRA court dismissed [Appellant’]s PCRA petition.

     On October 26, 2016, [Appellant] filed a notice of appeal. On
     November 1, 2016, [Appellant] filed a statement of errors
     complained of on appeal[.]

PCRA Court Opinion, 3/21/17, at 1-2 (footnote and some capitalization

omitted).

     Appellant asks us to consider four issues in this appeal as follows:

     A. Whether the []PCRA court erred in denying and dismissing Appellant
        Robert Miller’s petition for post-conviction relief finding the matter
        was time barred pursuant to 42 Pa.C.S.A. [§] 9545(b).

     B. Whether the []PCRA court erred in denying and dismissing Appellant,
        Robert Miller’s petition for post-conviction relief seeking to reinstate
        his post-sentence/appellate rights, nunc pro tunc, where [A]ppellant
        alleged he requested the Philadelphia Public Defender’s Office file a
        motion for reconsideration/appeal following his entry of a negotiated
        guilty plea and sentencing before the court on March 11, 2014.

     C. Whether the []PCRA court erred in denying and dismissing Appellant,
        Robert Miller’s petition for post-conviction relief where [A]ppellant
        alleged and averred the guilty plea colloquy was defective and did
        not include all of the required areas of inquiry pursuant to
        Pa.R.Crim.P. 590(B)(2) and [A]ppellant, Miller was suffering from
        mental defects at the time of the guilty plea and where the court


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           mistakenly informed [A]ppellant, Miller he would be subject to a
           mandatory minimum sentence despite its abrogation in Alleyne.[1]

       D. Whether the []PCRA court erred in denying and dismissing Appellant,
          Robert Miller[’s] request for an evidentiary hearing on his petition for
          post-conviction relief.

Appellant’s Brief at 9 (some capitalization omitted).

       “[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). 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, [i]f 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) (first alteration in original) (internal citations and quotation marks

omitted). As timeliness is separate and distinct from the merits of Appellant’s

underlying claims, we first determine whether this PCRA petition is timely



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1 Alleyne v. United States, 133 S.Ct. 2151 (2013). We note that Appellant
mentions Alleyne in his Statement of Questions Presented but does not list
the case in his Table of Cases or refer to it in the body of his brief.

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

(consideration of Brady claim separate from consideration of its timeliness).

         As reflected in the excerpt from the PCRA court’s opinion, Appellant was

sentenced on March 11, 2014, after entering a negotiated guilty plea to rape

and corruption of minors. He did not seek reconsideration or file an appeal to

this Court. Therefore, his judgment of sentence was final thirty days after

sentencing, i.e., on April 10, 2014, and any petition for relief under the PCRA

had to be filed by April 10, 2015, one year after the date his judgment of

sentence was final. 42 Pa.C.S.A. § 9545(b)(1).

         Appellant filed his pro se petition on December 1, 2015, nearly eight

months after the deadline for filing a petition, and his counsel filed an

amended petition on June 7, 2016. Therefore, his petition is untimely on its

face.

         The PCRA does afford a petitioner the opportunity to save his petition

from the PCRA’s time bar if the petition alleges and the petitioner proves one

of the exceptions recognized in § 9545(b)(1)(i)-(iii). However, as the PCRA

court correctly observed:

         [T]he PCRA court concluded that [Appellant’s] petition was
         untimely and failed to plead any valid exception to the timeliness
         requirements of the PCRA. [Appellant] admits his petition was
         untimely, but he does not offer any exception to the PCRA one-
         year period.

         ....

         On June [7], 2016, [Appellant] filed an amended PCRA petition
         admitting [Appellant’s] petition was untimely, but did not argue

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       that any exception applied. [Appellant] argues instead that the
       hearing was defective because he unwillingly entered into a guilty
       plea. As a result, [Appellant] contends that his guilty plea should
       be withdrawn and his sentence vacated.

PCRA Court Opinion, 3/21/17, at 6 (some capitalization omitted).2

       The PCRA court also properly recognized that the PCRA permits

defendants to file petitions requesting reinstatement of appellate rights. Id.

“[H]owever, defendants are still required to comply with the PCRA one-year

period.” Id. at 6-7 (citing Commonwealth v. Fairiror, 809 A.2d 396, 397

(Pa. Super. 2002), in turn citing Commonwealth v. Hall, 771 A.2d 1232 (Pa.

2001)).

       Although Appellant did not allege any exception to the timeliness

requirement in his original or amended petition, he asserts various reasons he

is entitled to reinstatement of his appeal rights. He claims plea counsel was

ineffective and that his sentence exceeded the lawful statutory maximum.

Also, he contends he is entitled to relief under Article I, Section of 14 of the

Pennsylvania Constitution, “establishing the state constitutional right to

habeas corpus” as well as “statutory grounds for relief enumerated in the

[PCRA.]” Appellant’s Brief at 19-20. Appellant’s assertions are without merit.


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2 We acknowledge that Appellant’s amended petition pays lip service to the
PCRA’s eligibility requirements by quoting provisions of 42 Pa.C.S.A.
§ 9543(a)(2). Amended Petition, 6/7/16, at 4-5. However, the petition does
not allege or prove an exception to the timeliness requirements of
§ 9545(b)(1). Nor does Appellant’s petition even mention § 9545(b)(2),
which requires that a petition invoking an exception be filed within 60 days of
the date the claim could have been presented.

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      As this Court recognized in Fairiror, “all requests for reinstatement of

appellate rights, including PCRA appellate rights, must meet the timeliness

requirements of the PCRA.”     Id. at 397. Further, an allegation of counsel

ineffectiveness “does not save an otherwise untimely petition for review on

the merits.” Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa.

2000). Also, as our Supreme Court explained in Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999), “[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.” Moreover, “[u]nless the PCRA could not

provide a potential remedy, the PCRA statute subsumes the writ of habeas

corpus.” Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(citing Fahy, supra at 223-24; Commonwealth v. Chester, 733 A.2d 1242

(Pa. 1999)). As we reiterated in Taylor, “[i]ssues that are cognizable under

the PCRA must be raised in a timely PCRA petition and cannot be raised in a

habeas corpus petition.” Id. at 466 (citing, inter alia, Commonwealth v.

Peterkin, 722 A.2d 638 (Pa. 1998)).

      Appellant’s petition was not timely filed and did not allege any exception

to the PCRA’s time bar.     Therefore, the PCRA court lacked jurisdiction to

consider the merits, if any, of his petition. Likewise, this Court likewise lacks




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jurisdiction to consider the merits, if any, of the issues presented in this

appeal.3

       The PCRA court’s findings of fact are supported by the record and its

conclusions of law are free from legal error. Therefore, we affirm the PCRA

court’s order dismissing Appellant’s petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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3We note that Appellant argues in his fourth issue that the PCRA court erred
by dismissing his petition without a hearing. In light of the fact the petition
was untimely and Appellant failed to allege or prove any exception to the
PCRA’s time bar, the PCRA court was without jurisdiction to entertain it and,
consequently, did not err in dismissing his petition without a hearing.
Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa. 2008).


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