J. S30024/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
KELLY ANDERSON,                          :          No. 2051 EDA 2015
                                         :
                        Appellant        :


                  Appeal from the PCRA Order, June 22, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0708042-2000


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND JENKINS, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 19, 2016

      Kelly Anderson appeals pro se from the order filed in the Court of

Common Pleas of Philadelphia County which dismissed, without a hearing,

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

42 Pa.C.S.A. §§ 9541-9546.      Because we agree with the PCRA court that

appellant’s facially untimely petition failed to establish a statutory exception

to the one-year jurisdictional time limit for filing a petition under the PCRA,

we affirm.

      The PCRA court set forth the following procedural history:

                   On July 1, 2003, following a jury trial,
             [appellant] was convicted of third-degree murder,
             aggravated assault, and possession of an instrument
             of crime.[1] Thereafter, [appellant] was sentenced

1
  18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 2702, 18 Pa.C.S.A. § 907,
respectively.
J. S30024/16


          to an aggregate term of nineteen to sixty years’
          incarceration.  On August 12, 2004, following a
          direct appeal, the Superior Court affirmed the
          judgment of sentence based upon the omission of
          transcripts from the certified record.[Footnote 2]
          After the PCRA court reinstated his appellate rights
          nunc pro tunc, [appellant] again pursued a direct
          appeal. The Superior Court affirmed [appellant’s]
          judgment of sentence on July 20, 2007.[Footnote 3]
          The Pennsylvania Supreme Court denied allocatur
          on January 30, 2008.[Footnote 4]

               [Footnote 2]      Commonwealth v.
               Anderson, 860 A.2d 1123 (Pa.Super.
               2004) (unpublished memorandum).

               [Footnote 3]      Commonwealth v.
               Anderson, 932 A.2d 248 (Pa.Super.
               2007) (unpublished memorandum).

               [Footnote 4]     Commonwealth           v.
               Anderson, 944 A.2d 755 (Pa. 2008).

                 On September 30, 2008, [appellant] filed a
          timely pro se PCRA petition.         Counsel was
          subsequently appointed. On June 10, 2011, the
          PCRA court denied the petition. The Superior Court
          affirmed the lower court’s denial of [appellant’s]
          petition on August 31, 2012.[Footnote 5]       The
          Pennsylvania Supreme Court denied his petition for
          allowance of appeal on February 21, 2013.[Footnote
          6]

               [Footnote 5]      Commonwealth v.
               Anderson, 60 A.3d 586 (Pa.Super.
               2012) (unpublished memorandum).

               [Footnote 6]     Commonwealth           v.
               Anderson, 63 A.3d 772 (Pa. 2013).

                On August 28, 2014, [appellant] filed the
          instant pro se PCRA petition. On March 30, 2015,
          the PCRA court issued its notice of intent to dismiss
          pursuant to Rule 907. On June 22, 2015, the PCRA


                                  -2-
J. S30024/16


            court dismissed [appellant’s] petition again as
            untimely. On July 2, 2015, the instant notice of
            appeal was filed to the Superior Court.

PCRA court opinion, 7/20/15 at 1-2.

      Appellant raises the following issues for our review:

            I.     WOULD IT BE A DENIAL OF DUE PROCESS TO
                   REQUIRE [APPELLANT] TO MEET A STANDARD
                   OF TIMELINESS CONCERNING AN ISSUE THAT
                   IS NON-WAIVABLE AND WHETHER OR NOT[]
                   [APPELLANT]     IS  ENTITLED    TO   THE
                   RETROACTIVE APPLICATION OF [ALLEYNE V.
                   UNITED STATES,        U.S.    , 133 S.Ct.
                   2151 (2013)] (PROSPECTIVELY)?

            II.    WHAT IS THE APPLICABILITY OF THE UNITED
                   STATES SUPREME COURT’S DECISION IN
                   [ALLEYNE], [     U.S.   ,] 133 S.Ct. 2151
                   (2013), AND DOES THE DECISION RENDER
                   [APPELLANT’S] SENTENCE ILLEGAL AND ALSO
                   DID THE TRIAL COURT         ABUSE [ITS]
                   DISCRETION BY IMPOSING [ITS] SENTENCE
                   VIA THE DEADLY WEAPONS ENHANCEMENT
                   PROVISIONS?

            III.   DID THE TRIAL COURT ERR BY SENTENCING
                   [APPELLANT] FOR THE CONVICTED OFFENSE
                   OF 18 PA.C.S. § 2702(a)(2), CONSECUTIVELY
                   PURSUANT TO THE DEADLY [WEAPONS]
                   ENHANCEMENT,      WHICH      DOES    NOT
                   AUTHORIZE SENTENCING FOR THE ABOVE
                   OFFENSE AS THE [CODE’S] DIRECTIVES DO
                   NOT APPLY?

            IV.    WHETHER THE SENTENCE IMPOSED VIOLATES
                   THE MERGER DOCTRINE, WHICH VIOLATES
                   [APPELLANT’S] FIFTH AMENDMENT RIGHTS?

Appellant’s brief at 4.




                                      -3-
J. S30024/16


         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).        “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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.     Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

         Here, appellant’s judgment of sentence became final on April 29,

2008,2 which was 90 days after our supreme court denied discretionary

review on January 30, 2008. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903;

Commonwealth          v.   Cintora,   69   A.3d   759,   763   (Pa.Super.   2013);

U.S. Sup.Ct.R. 13. Therefore, appellant’s petition, filed more than six years

later on August 28, 2014, is facially untimely. As a result, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant alleged




2
    We note that 2008 was a leap year.


                                       -4-
J. S30024/16


and proved one of the statutory exceptions to the time bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time bar are:        when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.     42   Pa.C.S.A.   §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Here, appellant has neither plead nor proven the applicability of any

exception under § 9545(b)(1).           Appellant’s brief contains incoherent

ramblings that continuously state that challenges to the legality of sentence

are non-waivable, as well as unsupported claims that appellant is entitled to

relief under our Supreme Court’s decision in Alleyne v. United States,

U.S.     , 133 S.Ct. 2151 (2013).

       With respect to appellant’s first claim, although he correctly asserts

that a challenge to the legality of sentence cannot be waived, such a

challenge, however, does not circumvent the PCRA’s jurisdictional time bar.



                                       -5-
J. S30024/16


              [O]ur Supreme Court has stated unequivocally that
              “although 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.” Commonwealth v. Fahy, 558 Pa. 313,
              737 A.2d 214, 223 (Pa. 1999) (citation omitted).
              See also Commonwealth v. Guthrie, 2000 PA
              Super 77, 749 A.2d 502, 503 (Pa.Super. 2000)
              (citing Fahy and stating that “even within the PCRA,
              the time limits described in 42 Pa.C.S.[A.] § 9545
              have been held to apply to questions raising the
              legality of sentence.”).

Commonwealth         v.    Voss,    838      A.2d   795,   800    (Pa.Super.     2003).

Consequently, because appellant’s current PCRA petition does not satisfy the

PCRA’s time limits and because appellant failed to plead or prove the

applicability of an exception, appellant’s challenge to the legality of his

sentence is time barred.

       With    respect    to   appellant’s    second    claim    regarding     Alleyne,

appellant’s petition fails to plead or prove an exception to the jurisdictional

time bar. To the extent that appellant attempts to plead that this case falls

under the PCRA’s new constitutional right exception, appellant is mistaken.

Even   if   appellant’s   claim    had    met   the    underlying   requirements     of

§ 9545(b)(1)(iii), he still would not be entitled to any relief because he did

not satisfy the 60-day requirement set forth in § 9545(b)(2).                    Stated

differently, appellant did not file his PCRA petition alleging such exception

within 60 days of the Alleyne decision. To fulfill the 60-day requirement,

appellant was required to file his petition within 60 days of the Court’s

decision.     Brandon, 51 A.3d at 235 (finding appellant’s claim, alleging


                                          -6-
J. S30024/16


recently filed judicial decision as newly discovered fact, failed for, inter alia,

not complying with § 9545(b)(2), “the sixty-day period begins to run upon

the date of the underlying judicial decision[,]” not the date appellant became

aware of the decision).     The United States Supreme Court’s decision in

Alleyne was filed on June 17, 2013. Appellant filed his petition more than

14 months later on August 28, 2014. Thus, appellant’s petition is untimely

on this basis as well.

      Accordingly, because appellant’s petition is untimely and appellant has

failed to plead and/or prove an exception enumerated in 42 Pa.C.S.A.

§ 9545(b), the PCRA court lacked jurisdiction, and it properly dismissed the

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2016




                                      -7-
