J-A28042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CARLOS VALENTINE                           :
                                               :
                      Appellant                :   No. 1002 EDA 2017

                      Appeal from the Order March 7, 2017
    In the Court of Common Pleas of Montgomery County Criminal Division at
                        No(s): CP-46-CR-0003521-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

JUDGMENT ORDER BY DUBOW, J.:                         FILED NOVEMBER 28, 2017

        Appellant, Carlos Valentine, appeals from the Order entered in the

Montgomery County Court of Common Pleas dismissing as untimely his

second Petition filed under the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.1 After careful review, we conclude that Appellant’s

pro se Petition was untimely and affirm.




____________________________________________


1 Appellant’s pro se Notice of Appeal erroneously states he is appealing from
an Order dated January 22, 2017. This Court issued a Rule to Show Cause
as to why the appeal should not be quashed as it appears to be from a non-
existent order. Appellant responded pro se without explicitly addressing that
question. It is apparent from his response, however, that Appellant was, in
fact, appealing from the PCRA Court’s March 7, 2017 Order and that his
Notice of Appeal filed March 21, 2017, was timely. Accordingly, we decline
to quash the appeal and we have amended the caption.
J-A28042-17



        Following a non-jury trial, the court convicted Appellant of Aggravated

Assault, Recklessly Endangering Another Person, Disorderly Conduct and two

counts each of Simple Assault and Harassment.2 On August 15, 2012, the

court    sentenced     him    to   a   term    of   three-and-a-half    to   ten   years’

imprisonment.       Appellant did not file a direct appeal. His Judgment of

Sentence, thus, became final on September 14, 2012.3

        On May 20, 2014, Appellant filed his first PCRA Petition pro se and

counsel was appointed. On September 10, 2014, the PCRA court dismissed

the Petition as untimely, and on April 8, 2015, this Court affirmed.

Commonwealth v. Valentine,                 2874     EDA   2014   (Pa.   Super.     2015)

(unpublished memorandum).

        On February 7, 2017, Appellant filed a pro se Writ of Habeas Corpus

contending his sentence was illegal. The PCRA court properly treated the

filing as a second PCRA petition4 and, after filing a Pa.R.Crim.P. 907 Notice,

dismissed it as untimely.

____________________________________________


2 18 Pa.C.S. § 2702(a)(1); 18 Pa.C.S. § 2705; 18 Pa.C.S. § 5503(a)(1); 18
Pa.C.S. § 2701(a)(1); and 18 Pa.C.S. § 2709(a)(1), respectively.

3 See 42 Pa.C.S. § 9545(b)(3) (providing that 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 the expiration of time for seeking the review.”

4 See 42 Pa.C.S. § 9542; Commonwealth v. Taylor, 65 A.3d 462, 466
(Pa. Super. 2013) (holding “[i]ssues that are cognizable under the PCRA
must be raised in a timely PCRA petition and cannot be raised in a habeas
(Footnote Continued Next Page)


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      This timely appeal followed.             Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

          (a) Whether the court abused its discretion to convert
          Appellant’s petition for writ of habeas corpus ad
          subjiciendum into a petition for post-conviction collateral
          relief, when the plain language of 42 Pa.C.S.A. § 9545
          prohibited such an action by anyone?

          (b) Whether the court abused its discretion to convert
          Appellant’s petition for writ of habeas corpus ad
          subjiciendum into a petition for post-conviction collateral
          relief knowing that relief would be barred specifically by
          the PCRA’s time limitations which relief pursuant to state
          habeas corpus would have been available?

          (c) Whether the court erred in dismissing the issue
          questioning the court’s jurisdiction over the subject
          matter; pertaining to a void judgment of sentence order,
          when such a claim is nonwaivable and can be pursued at
          any time?

          (d) Can a claim of subject matter jurisdiction or void
          judgment be time barred?

Appellant’s Brief at 6.

      Before addressing the merits of Appellant’s issues, we must determine

whether we have jurisdiction to entertain the underlying PCRA petition. “The

PCRA’s timeliness requirements are jurisdictional in nature, and a court may

not address the merits of the issues raised if the PCRA petition was not


(Footnote Continued) _______________________

corpus petition. . . . [A] defendant cannot escape the PCRA time-bar by
titling his petition or motion as a writ of habeas corpus.”) (footnote omitted).



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J-A28042-17



timely filed.” Commonwealth v. Copenhefer, 941 A.2d 646, 648-49 (Pa.

2007). “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, 737 A.2d 214, 223 (Pa.

1999).    See 42 Pa.C.S. § 9545(b)(1)(i-iii) (setting forth timeliness

exceptions).

      Here, Appellant’s Judgment of Sentence became final on September

14, 2012. The instant PCRA petition is, thus, facially untimely.   Appellant

did not plead or prove any timeliness exception.         Therefore, we lack

jurisdiction to consider the merits of his Petition.   See Copenhefer, 941

A.2d at 648-49.     Accordingly, we affirm the Order of the PCRA court

dismissing his PCRA petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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