J-S08027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

VINCENT CAMPBELL

                        Appellant                  No. 2023 EDA 2014


                 Appeal from the PCRA Order of July 7, 2014
              In the Court of Common Pleas of Chester County
           Criminal Division at Nos.:  CP-15-CR-0001329-2001
                                       CP-15-CR-0001401-2001
                                       CP-15-CR-0001616-2001


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                      FILED FEBRUARY 03, 2015

      Vincent Campbell appeals the July 7, 2014 order dismissing his second

petition for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-46, as untimely. We affirm.

      The PCRA court summarized the procedural history of this case as

follows:

      On September 25, 2001, [Campbell] entered a negotiated guilty
      plea to aggravated assault, resisting arrest, flight to avoid
      apprehension and driving under the influence.           He was
      sentenced that day to serve a term of imprisonment of six to
      twelve years[’ imprisonment]. [Campbell] did not appeal his
      sentence. Approximately eleven years later, on July 30, 2012,
      [Campbell] filed his first [PCRA] petition [], and was appointed
      PCRA counsel.      On February 19, 2013, [the PCRA court]
      dismissed his PCRA petition as untimely. On November 13,
      2013, [this Court] affirmed the dismissal, also finding
      [Campbell’s] PCRA petition untimely. [See Commonwealth v.
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     Campbell, No. 712 EDA 2013, slip op. at 1, 6 (Pa. Super. Nov.
     13, 2013).]

     On March 14, 2014, [Campbell] filed a second PCRA petition.
     Again, [the PCRA court] reviewed the petition and the record,
     found that the petition was also untimely, and on June 19, 2014,
     notified [Campbell] of [the court’s] intent to dismiss his petition
     [pursuant to Pa.R.Crim.P. 907]. Although [Campbell] responded
     to [the Rule 907 notice,] his response established entitlement to
     no PCRA timeliness exception. Accordingly, [the PCRA court]
     dismissed his PCRA petition on July 7, 2014.

PCRA Court Opinion, 9/4/2014, at 1-2.

     On July 17, 2014, Campbell filed a notice of appeal. In response, the

PCRA court directed Campbell to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        On August 18,

2014, Campbell timely complied.     On September 4, 2014, the PCRA court

issued an opinion pursuant to Pa.R.A.P. 1925(b).

     Campbell raises the following issues for our consideration:

     1. Whether the lower trial courts followed the sentencing code?

     2. Whether the sentence imposed is illegal and unconstitutional
        under the United States Constitution and [the] Pa.
        Constitution?

     3. Whether [Campbell’s] sentence left him therefor unlawfully
        imprisoned?

     4. Did [Campbell] show just cause for review pursuant to 42
        Pa.C.S.A. § 9545(b)(1)(i-iii)/42 Pa.C.S. [§ 9545](b)(i)(ii)?

     5. Whether [Campbell’s second] PCRA was timely?

Brief for Campbell at 3 (commas omitted for clarity).

     Our standard of review for an order denying PCRA relief is well-settled:




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      This Court’s standard of review regarding a PCRA court’s order is
      whether the determination of the PCRA court is supported by the
      evidence of record and is free of legal error. Great deference is
      granted to the findings of the PCRA court, and these findings will
      not be disturbed unless they have no support in the certified
      record. Moreover, a PCRA court may decline to hold a hearing
      on the petition if the PCRA court determines that a petitioner’s
      claim is patently frivolous and is without a trace of support in
      either the record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).

      Before we can consider the merits of Campbell’s issues, we first must

determine whether his second PCRA petition was timely filed, thereby

conferring jurisdiction upon the PCRA court to rule upon the petition in the

first instance.   In Commonwealth v. Jackson, we articulated the

timeliness standards under the PCRA as follows:

      The PCRA “provides for an action by which persons convicted of
      crimes they did not commit and persons serving illegal sentences
      may obtain collateral relief.” 42 Pa.C.S.A. § 9542. When an
      action is cognizable under the PCRA, the PCRA is the “sole
      means of obtaining collateral relief and encompasses all other
      common law and statutory remedies for the same purpose[.]”
      42 Pa.C.S.A. § 9542.

      In order for a court to entertain a PCRA petition, a petitioner
      must comply with the PCRA filing deadline.                 See
      Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.
      2003).    The time for filing a petition is set forth in
      42 Pa.C.S.A. § 9545(b), which provides in relevant part:

         (b) Time for filing petition.—

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:


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           (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.A. § 9545(b).

     “[T]he time limitations pursuant to . . . the PCRA are
     jurisdictional.” Commonwealth v. Fahy, 737 A.2d 214, 222
     (Pa. 1999). “[Jurisdictional time] limitations are mandatory and
     interpreted literally; thus, a court has no authority to extend
     filing periods except as the statute permits.” Id. “If the petition
     is determined to be untimely, and no exception has been pled
     and proven, the petition must be dismissed without a hearing
     because Pennsylvania courts are without jurisdiction to consider
     the merits of the petition.” Commonwealth v. Perrin, 947
     A.2d 1284, 1285 (Pa. Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 518-19 (Pa. Super. 2011).

     Instantly, Campbell was sentenced on September 25, 2001. Campbell

did not file a direct appeal. Thus, his judgment of sentence became final on

or about October 25, 2001.     See 42 Pa.C.S. § 9545(b)(3) (“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.”). To be



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timely, Campbell had to file a PCRA petition within one year of that date, on

or before October 25, 2002. See 42 Pa.C.S. § 9545(b)(1) (“[a]ny petition

under this subchapter, including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.”). Campbell

filed the instant petition on March 14, 2014.        Consequently, Campbell’s

second PCRA petition is facially untimely by approximately eleven and one-

half years.

       Nonetheless, as noted above, an untimely PCRA petition will be

deemed to be timely filed if the petitioner has pleaded and proven in his

PCRA petition one of the three enumerated exceptions to the PCRA’s time

bar.   See 42 Pa.C.S. § 9545(b)(1) (“[a]ny petition under this subchapter,

including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final, unless the petition alleges and the

petitioner proves [one of the three exceptions.]) (emphasis added).          The

PCRA court noted in its opinion that Campbell has failed to demonstrate that

one of the exceptions applies.     See PCRA Court Opinion, supra at 2.       We

agree with the PCRA court.

       The crux of Campbell’s claim for relief, as set forth in his PCRA petition

and in his brief to this Court, is his contention that he was illegally sentenced

on his DUI conviction.     In his PCRA petition, Campbell argued that, as a

result of research in the prison law library, his discovery that his sentence

was illegal constituted a newly discovered fact for purposes of the relevant

exception to the PCRA’s time limits. See 42 Pa.C.S. § 9545(b)(1)(ii). The

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newly discovered fact exception “requires [a] petitioner to allege and prove

that there were ‘facts’ that were ‘unknown’ to him” and that he could not

have    ascertained   those   facts   by   the    exercise   of     “due   diligence.”

Commonwealth v. Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007).                       The

focus of the exception is “on [the] newly discovered facts, not on a newly

discovered    or   newly   willing    source     for   previously    known     facts.”

Commonwealth v. Johnson, 863 A.2d 423, 427 (Pa. 2004) (emphasis in

original), abrogation on different grounds recognized by Commonwealth v.

Bennett, 930 A.2d 1264 (Pa. 2007).

       Campbell has failed to explain, either in his PCRA petition or in his

brief to this Court, why he could not have ascertained the purported illegality

of his sentence at an earlier date, or how he nonetheless acted with due

diligence in the eleven and one-half years between the date that the

sentence was imposed and the date that he filed his PCRA petition. Indeed,

Campbell proffers no analysis of the necessary elements of the exception,

and offers no meaningful discussion as to how he has satisfied those

elements.    Hence, we agree with the PCRA court that Campbell has not

established that he is entitled to the application of the exception.

       Campbell also argues that the jurisdictional elements of the PCRA have

been satisfied because his claim represents a challenge to the legality of his

sentence, which is a non-waivable challenge. However, it is well-settled that

such a claim does not, ipso facto, provide a PCRA court with jurisdiction.

Although it is true that claims regarding the legality of a sentence generally

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cannot be waived, Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.

Super. 2008), waiver and jurisdiction are separate matters.        “Though not

technically waivable, a legality [of sentence] claim may nevertheless be lost

should it be raised for the first time in an untimely PCRA petition for which

no time-bar exception applies, thus depriving the court of jurisdiction over

the claim.” Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa. Super.

2007) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“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.”)).

      Campbell cannot establish the PCRA court’s jurisdiction to grant relief

on his untimely PCRA petition.       The petition at issue herein was filed

approximately eleven and one-half years after Campbell’s judgment of

sentence became final. Campbell has not proved the applicability of any of

the enumerated exceptions to the PCRA time limits. Thus, the PCRA court

lacked jurisdiction over his petition, and did not err or abuse its discretion in

dismissing the petition on that basis.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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