J-S46020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

YAKOUB SMITH

                            Appellant                        No. 3450 EDA 2015


                  Appeal from the PCRA Order October 29, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0400016-1992


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                         FILED JULY 11, 2016

        Yakoub Smith appeals pro se from the order entered October 29,

2015, in the Court of Common Pleas of Philadelphia County, that dismissed

as untimely his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546.               Smith seeks relief from the judgment of

sentence of life imprisonment imposed on September 12, 1994, after he

was convicted by a jury of murder in the first degree, robbery, possession of

an instrument of crime and criminal conspiracy.1 On appeal, Smith claims

the trial court (1) “erred in not correcting an illegal sentence that was

rendered in violation of Pa.R.Crim.P. 225(d) [now Pa.R.Crim.P. 560],” and

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2502, 3701, 907 and 903, respectively.
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(2) “abandoned the specific/general rule.” Smith’s Brief at vi. Based upon

the following, we affirm.

      The relevant facts and procedural history are as follows. On February

27, 1992, Smith participated with a number of co-conspirators to rob

Mitchell Thompson (the victim). During the course of the robbery, Smith

fatally shot the victim. On July 9, 1993, Smith was convicted by a jury of the

above stated offenses. A penalty hearing followed, and the jury verdict was

life imprisonment. Post-trial motions were denied, and, on September 12,

1994, the trial court sentenced Smith to life imprisonment. On August 10,

1995, this Court affirmed the judgment of sentence, and, on April 12, 1996,

the Pennsylvania Supreme Court denied Smith’s petition for allowance of

appeal.   Commonwealth v. Smith, 668 A.2d 1198 (Pa. Super. 1995)

(unpublished memorandum), appeal denied, 672 A.2d 307 (Pa. 1996).

Smith did not seek discretionary review with the United States Supreme

Court.

      On September 30, 1996, Smith filed a timely pro se PCRA petition and

counsel was appointed. Counsel subsequently submitted a petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)

and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

The PCRA court denied Smith’s petition without a hearing on October 21,

1997, and granted counsel’s petition to withdraw. This Court affirmed the

order denying post-conviction relief on July 14, 1999, and the Pennsylvania


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Supreme Court denied allowance of appeal on December 14, 1999. See

Commonwealth v. Smith, 742 A.2d 1152 (Pa. Super. 1999) (unpublished

memorandum), appeal denied, 749 A.2d 470 (Pa. 1999).

        On August 11, 2010, Smith filed a pro se “Petition for Writ of Habeas

Corpus Ad Subjiciendum.” The court treated the petition as a PCRA petition

and, by order dated August 10, 2011, dismissed the petition. On June 26,

2012, this Court affirmed the PCRA court’s dismissal order and, on

December 4, 2012, the Pennsylvania Supreme Court denied allowance of

appeal.     Commonwealth v. Smith, 53 A.3d 940 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 57 A.3d 70 (Pa. 2012).2

        On June 23, 2015, Smith filed the present petition, his third.     On

December 11, 2015, following Pa.R.Crim.P. 907 notice of intent to dismiss,

the PCRA court dismissed the petition on the basis of untimeliness. This

appeal followed.3

        On appeal, Smith contends he was illegally sentenced because the trial

court lacked subject matter jurisdiction when sentencing him to first degree



____________________________________________


2
  This Court determined Smith’s judgment of sentence became final on July
11, 1996, and the PCRA one-year time limitation expired on July 11, 1997.
See Commonwealth v. Smith, 53 A.3d 940 (Pa. Super. 2012)
(unpublished memorandum, at 2, 8).
3
    The PCRA court did not order Smith to file a Pa.R.A.P. 1925(b) statement.




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J-S46020-16


murder where the indictment did not specify a degree of murder.            See

Smith’s Brief at viii.

      Our standard of review is well settled:

          The standard of review for an order denying post-
          conviction relief is limited to whether the record supports
          the PCRA court’s determination, and whether that
          decision is free of legal error. The PCRA court’s findings
          will not be disturbed unless there is no support for the
          findings in the certified record.

Commonwealth v. Walters, ___ A.3d ___, ___ [2016 Pa. Super. LEXIS

114; 2016 PA Super 42] (Pa. Super. February 19, 2016) (citation omitted).

      Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we agree with Honorable Jeffrey P. Minehart that the

petition is untimely under the PCRA, and conclude that further elaboration

by this Court is unnecessary in light of Judge Minehart’s well-reasoned

analysis. Accordingly, we adopt his discussion as dispositive of this appeal,

as follows:

      [Smith’s] sentence became final in 1996.2 After a conviction
      __________________________________
          2
           Because the instant petition is not [Smith’s] first, the
         one-year grace period provided in the 1996 amendments
         to the PCRA “does not apply to second or subsequent
         petitions, regardless of when the first petition was filed.”
         Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super.
         2002), appeal denied, 573 Pa. 703, 827 A.2d 429 (2003).
      __________________________________

      becomes final, a petitioner has one year to file a post conviction
      petition. Therefore, [Smith’s] June 23, 2015 petition was
      untimely unless it properly invoked one of the exceptions to the


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     one-year limitation. The three exceptions as enumerated in 42
     Pa.C.S.A. §9545 (b)(1)(i)-(iii) 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.

     The P.C.R.A.’s time limit is jurisdictional. Commonwealth v.
     Yarris, 731 A.2d 581 ([Pa.] 1999). Commonwealth v.
     Peterkin, 722 A.2d 638, 641 ([Pa.] 1998). Thus, an untimely
     petition may not be addressed simply because it is couched in
     terms of ineffectiveness. Peterkin, 722 A.2d at 643. Moreover,
     to successfully invoke one of these exceptions a petitioner must
     plead and then prove that an exception to the time for filing the
     petition set forth at 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. 42
     Pa.C.S. § 9545(b)(2); Commonwealth v. Bennett, 930 A.2d
     1264, 1272 n.11 (Pa. 2007); Commonwealth v. Crews, 863
     A.2d 498, 501 (Pa. 2004). Finally, a PCRA petitioner must
     present his claimed exception within sixty days of the date the
     claim first could have been presented. 42 Pa.C.S.A. §
     9545(b)(2). “As such, when a PCRA petition is not filed within
     one year of the expiration of direct review, or not eligible for one
     of the three limited exceptions, or entitled to one of the
     exceptions, but not filed within 60 days of the date that the
     claim could have been first brought, the PCRA court has no
     jurisdiction to address the substantive merits of a petitioner's
     PCRA claims.” Commonwealth v. Gamboa-Taylor, 753 A.2d
     780, 783 ([Pa.] 2000).

     [Smith] claims the trial court lacked jurisdiction to sentence him
     to a specific degree of murder when the indictment stated
     murder, generally. Our Supreme Court has ruled that “although

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     legality of sentence is always subject to review within the PCRA,
     [such] 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)[.]         The Superior Court has stated:
     “[T]hus, although the issue is considered incapable of being
     waived, this fact does not mean that the matter can be
     addressed at any time during the length of the sentence. Action
     to correct a defect must still be taken within one year of the date
     the judgment of sentence becomes final for purposes of the
     PCRA.” Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa.
     Super. 2007).3
     __________________________________
         3
         In any event, the correct charge is murder, generally, as
        the degree of murder is determined based on the
        evidence produced at trial.
     __________________________________

     In sum, [Smith] failed to demonstrate that government officials
     obstructed the presentation of his claims; failed to offer after-
     discovered evidence which was previously unknown to him and
     could not have been obtained by the exercise of due diligence;
     and has not alleged a violation of a constitutional right
     recognized after the one-year limitation and held to apply
     retroactively.

     Accordingly, for all the foregoing reasons, [Smith’s] petition was
     properly dismissed as untimely[.]

PCRA Court Opinion, 12/11/2015, at 2–4 (unnumbered).

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2016




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