J-S05037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TAJI LEE,

                            Appellant                 No. 512 MDA 2016


                   Appeal from the PCRA Order March 16, 2016
                 in the Court of Common Pleas of Centre County
               Criminal Division at Nos.: CP-14-CR-0000333-2005
                             CP-14-CR-0000334-2005
                             CP-14-CR-0000335-2005
                             CP-14-CR-0000336-2005
                             CP-14-CR-0000793-2005


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 21, 2017

        Appellant, Taji Lee, appeals pro se from the dismissal of his third

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

        We take the following factual and procedural history from our

independent review of the certified record.       On May 26, 2006, a jury

convicted Appellant of twenty-six counts of delivery of a controlled

substance and possession of a controlled substance with intent to deliver,

and related charges, which resulted from a series of controlled buys.      On
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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July 19, 2006, the trial court sentenced Appellant to a term of imprisonment

of not less than thirty nor more than sixty years. This Court affirmed the

judgment of sentence on March 10, 2008, and our Supreme Court denied

review on December 17, 2008.             (See Commonwealth v. Lee, 953 A.2d

601 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 953

A.2d 1196 (Pa. 2008)).

       On March 27, 2009, Appellant filed a timely first PCRA petition pro se.

On May 27, 2009, appointed counsel filed an amended petition.             The

Commonwealth filed a motion to dismiss some of Appellant’s claims without

a hearing on October 15, 2009. Appellant failed to respond, and the court

granted the motion on March 12, 2010. The court denied the remainder of

Appellant’s claims on April 23, 2012, after conducting an evidentiary

hearing. Nearly four months later, on August 10, 2012, Appellant filed a pro

se appeal,1 which this Court quashed as untimely on September 26, 2012.

The Pennsylvania Supreme Court denied review on April 8, 2013.

       Appellant filed a second pro se PCRA petition on January 17, 2013,2

seeking reinstatement of his appeal rights nunc pro tunc. The PCRA court

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1
 On August 24, 2012, Appellant filed an application to remove his counsel,
and requested to proceed pro se. The court granted the requested relief on
August 28, 2012.
2
  Appellant filed his second and third PCRA petitions during the pendency of
his appeals to the Pennsylvania Supreme Court, in violation of Pennsylvania
Rule of Appellate Procedure 1701(a). See Pa.R.A.P. 1701(a). We remind
(Footnote Continued Next Page)


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granted the petition on October 29, 2013, and Appellant timely appealed the

PCRA court’s decisions regarding his first PCRA petition on November 6,

2013 pursuant to the court’s order.              On December 23, 2014, this Court

affirmed the denial of PCRA relief, and the Pennsylvania Supreme Court

denied review on May 20, 2015. (See Commonwealth v. Lee, 116 A.3d

699 (Pa. Super. 2014) (unpublished memorandum), appeal denied, 116

A.3d 603 (Pa. 2015)).3

      On March 5, 2015, Appellant filed the pro se PCRA petition currently

under review. On March 9, 2015, the PCRA court appointed counsel, who

filed a Turner/Finley4 no-merit letter and application to withdraw. On May

28, 2015, the PCRA court granted Appellant’s request for leave to file an

amended petition within sixty days. On November 2, 2015, the court filed a

notice of intent to dismiss the original petition without a hearing, and

granted counsel’s petition to withdraw.             See Pa.R.Crim.P. 907(1).   On

November 6, 2015, Appellant filed a memorandum of law in support of his
                       _______________________
(Footnote Continued)

Appellant that “when an appellant’s PCRA appeal is pending before a court, a
subsequent PCRA petition cannot be filed until the resolution of review of the
pending PCRA petition by the highest state court in which review is sought,
or upon the expiration of the time for seeking such review.”
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
3
  We recognize that the Atlantic Second number for the Supreme Court
precedes that of the Superior Court; however the citation provided above
comports with that discovered in our research.
4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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request for the amendment of his PCRA petition to include an alternative

claim for habeas corpus relief.         (See Memorandum of Law in Support of

Requested Amendment, 11/06/15, at 1). On November 12, 2015, Appellant

filed a response to the Rule 907 notice. On December 9, 2015, the court

ordered the Commonwealth to file a response to Appellant’s amended

petition. On March 2, 2016, the Commonwealth filed a timely response in

the form of a motion to dismiss.               On March 16, 2016, the PCRA court

granted    the   Commonwealth’s         motion    and   dismissed   the   petition   as

untimely.5 Appellant timely appealed.6

       Appellant raises three questions for this Court’s review:

       1.    Did the PCRA court err in failing to consider the threshold
       question regarding Appellant[’]s constitutional challenge to the
       constitutionality of 42[]Pa.C.S.[A.] § 9545(b), regarding what
       statutory authorization authorizes the removal of jurisdiction
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5
  The court properly treated Appellant’s petition as seeking PCRA relief. It is
well-established that “both the PCRA and the state habeas corpus statute
contemplate that the PCRA subsumes the writ of habeas corpus in
circumstances where the PCRA provides a remedy for the claim.”
Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008), cert. denied,
556 U.S. 1285 (2009) (citations omitted); see also 42 Pa.C.S.A. § 9542; 42
Pa.C.S.A. § 6503(b) (“[T]he writ of habeas corpus shall not be available if a
remedy may be had by post-conviction hearing proceedings authorized by
law.”). Here, Appellant challenges the legality of his sentence, which clearly
is a cognizable claim under the PCRA, for which he may obtain relief. See
42 Pa.C.S.A. § 9542 (The PCRA “provides for an action by which . . . persons
serving illegal sentences may obtain collateral relief.”).
6
 On May 2, 2016, Appellant filed a timely statement of errors complained of
on appeal pursuant to the PCRA court’s order. The court filed an opinion on
May 19, 2016. See Pa.R.A.P. 1925.




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     from the [PCRA] court, before denying Appellant[’]s petition as
     untimely?

     2.     Did the PCRA court err in failing to review Appellant[’]s
     amended petition under 42[]Pa.C.S.[A.] § 6503, given 42[]
     Pa.C.S.A § 9543[’]s lack of potential remedy for the requested
     relief regarding re-sentencing?

     3.    Did the PCRA court err in failing to correct Appellant[’]s
     unconstitutional sentence in violation of [his] equal protection
     right in light of 42[]Pa.C.S.[A.] §[]7508 being rendered
     unconstitutional, making Appellant[’]s sentence void ab initio?

(Appellant’s Brief, at 4) (unnecessary parentheses        and capitalization

omitted).

            This Court examines PCRA appeals in the light most
     favorable to the prevailing party at the PCRA level. Our review
     is limited to the findings of the PCRA court and the evidence of
     record[.] Additionally, [w]e grant great deference to the factual
     findings of the PCRA court and will not disturb those findings
     unless they have no support in the record. In this respect, we
     will not disturb a PCRA court’s ruling if it is supported by
     evidence of record and is free of legal error. However, we afford
     no deference to its legal conclusions. [W]here the petitioner
     raises questions of law, our standard of review is de novo and
     our scope of review is plenary. . . .

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014), appeal

denied, 101 A.3d 785 (Pa. 2014) (citations and quotation marks omitted).

     Here, the PCRA court dismissed Appellant’s petition on the basis that it

was untimely, with no exception pleaded or proven.        (See PCRA Court

Opinion, 5/19/16, at 3). We agree.

     It is well-settled that:

     A PCRA petition, including a second or subsequent one, must be
     filed within one year of the date the petitioner’s judgment of
     sentence became final, unless he pleads and proves one of the

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      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.             42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed.          The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions. . . .

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted).

      Here, Appellant’s judgment of sentence became final on March 17,

2009, which was ninety days after the Pennsylvania Supreme Court denied

review. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, he

had until March 17, 2010 to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b)(1).   Accordingly, Appellant’s current petition, filed on March 5,

2015, is untimely on its face, and we lack jurisdiction to consider its merits

unless he pleaded and proved a timeliness exception.

      Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right.   See id.   A PCRA petition invoking one of




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these statutory exceptions must “be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).7

       In this case, Appellant utterly fails to plead and prove the applicability

of any timeliness exception.8 Instead, he claims that, because his sentence

is illegal on the basis of Alleyne v. United States, 133 S. Ct. 2151 (2013),9

and its progeny, it is not subject to the timeliness requirements of the PCRA,

and, therefore, the PCRA court erred when it found it did not have

jurisdiction. (See Appellant’s Brief, at 32-33; see also Memorandum of Law

in Support of PCRA Petition, 3/05/15, at 3). This argument fails.

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7
  Appellant arguably satisfies 42 Pa.C.S.A. § 9545(b)(2). The Pennsylvania
Supreme Court decided Alleyne on June 17, 2013, at the same time that
the PCRA court was considering Appellant’s request to appeal nunc pro tunc
from the denial of his first PCRA petition. Once the court granted permission
to do so, Appellant immediately appealed nunc pro tunc and this Court
affirmed the court’s order. Thereafter, he filed his current petition, raising
the newly recognized constitutional right claim “within sixty days of the date
of the order which finally resolves the previous PCRA petition, because this is
the first date the claim could have been presented.” Lark, supra at 494
(citing 42 Pa.C.S.A. § 9545(b)(2)). However, as discussed infra, Appellant
fails to plead and prove the applicability of the timeliness exception, or
Alleyne (which is inapplicable on post-conviction review).
8
  Appellant quoted the newly recognized constitutional right exception in his
memorandum in support of his PCRA petition, (see Memorandum in Support
of PCRA Petition, 3/05/15, at 1), but did not discuss its applicability in this
case, and maintains that this was “an accidental citation.” (Appellant’s Brief,
at 33; see id. at 31); see also 42 Pa.C.S.A. § 9545(b)(1)(iii).
9
   The Alleyne Court held that “facts that increase mandatory minimum
sentences must be submitted to the jury” and found beyond a reasonable
doubt.” Alleyne, supra at 2163.




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      First, we observe that, “[t]hough not technically waivable, a legality

[of sentence] claim may nevertheless be lost should it be raised . . . in an

untimely PCRA petition for which no time-bar exception applies, thus

depriving the [C]ourt of jurisdiction over the claim.”    Commonwealth v.

Miller, 102 A.3d 988, 995 (Pa. Super. 2014) (citation omitted); see also

Jones, supra at 17 (“The timeliness requirements apply to all PCRA

petitions, regardless of the nature of the individual claims raised therein.”)

(citation omitted). Therefore, Appellant’s claim that he is not subject to the

time limitations of the PCRA because he is alleging the illegality of his

sentence fails.

      Second, because of his mistaken belief that an illegal sentence claim

can be raised in an untimely PCRA petition, Appellant fails even to attempt

to plead or prove the applicability of a timeliness exception.    Although he

maintains that his sentence is rendered illegal by Alleyne, he admits that

“the Pennsylvania Supreme Court held Alleyne not to be retroactive” to

cases on collateral review. (Appellant’s Brief, at 32 (citation omitted)); see

also Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016)

(holding Alleyne does not apply to cases on collateral review, and that,

therefore, appellant’s sentence “is not illegal on account of Alleyne.”).

      Appellant’s PCRA petition is patently untimely, and he utterly fails even

to attempt to meet his burden to plead and prove the applicability of a

timeliness exception. See Jones, supra at 16-17. Hence, we conclude that


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the PCRA court’s dismissal of Appellant’s untimely PCRA petition for lack of

jurisdiction is free of legal error. See Henkel, supra at 20.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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