J-S28026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

STEVE JEROME BROWN,

                       Appellant                  No. 2009 MDA 2014


         Appeal from the PCRA Order entered November 5, 2014,
            in the Court of Common Pleas of Dauphin County,
          Criminal Division, at No(s): CP-22-CR-0000064-2004,
           CP-22-CR-0000394-2004, CP-22-CR-0000395-2004,
           CP-22-CR-0003219-2004, CP-22-CR-0003480-2004,
                        & CP-22-CR-0004402-2003


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY ALLEN, J.:                            FILED MAY 14, 2015

     Steve Jerome Brown (“Appellant”) appeals pro se from the order

denying as untimely his second petition for post-conviction relief filed

pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-

46. We affirm.

     The background of this case is as follows:

           On August 9, 2001, [Appellant] pleaded guilty, at
        multiple docket numbers, to numerous drug related
        offenses, as well as criminal conspiracy, recklessly
        endangering another person, and a weapons offense. On
        December 2, 2004, [Appellant] was sentenced to an
        aggregate term of 11 to 22 years’ imprisonment. On
        December 10, 2004, [Appellant] filed a petition to
        withdraw his guilty plea, which was denied on January 6,
        2005. No direct appeal was filed.
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             On August 18, 2009, [Appellant] filed [a] PCRA petition.
         Counsel was appointed, but on October 23, 2009, counsel
         filed a “no-merit” brief [pursuant to Commonwealth v.
         Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
         v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),] and
         application to withdraw based upon the untimely nature of
         [Appellant’s] petition. On November 3, 2009, the PCRA
         court issued notice of its intention to dismiss the petition
         without a hearing and permitted counsel to withdraw.
         Appellant filed a response on November 18, 2009. . . .
         [O]n December 7, 2009, the court denied the petition as
         untimely.

Commonwealth v. Brown, 23 A.3d 1085 (Pa. Super. 2011), unpublished

memorandum at 1-2 (footnote omitted).

      Appellant filed a timely pro se appeal to this Court. On January 19,

2011, we affirmed the PCRA court’s order.     Brown, supra. Appellant did

not file a petition for allowance of appeal with our Supreme Court.

      On May 23, 2013, Appellant filed a pro se “PETITION FOR CREDIT FOR

IMPRISONMENT WHILE IN CUSTODY PRIOR TO SENTENCE.”                Treating the

filing as a second PCRA petition, the PCRA court issued Pa.R.Crim.P. 907

notice of its intent to dismiss the petition as untimely. On October 21, 2013,

Appellant filed a pro se response in which he essentially asserted that he

was seeking habeas corpus relief outside the parameters of the PCRA. On

January 15, 2014, the Commonwealth filed its answer to both Appellant’s

petition and response to the PCRA court’s Pa.R.Crim.P. 907 notice. On July

17, 2014, Appellant filed a pro se “PETITION FOR HABEAS CORPUS,” in

which he sought relief pursuant to the United States Supreme Court’s recent

holding in Alleyne v. United States, 133 S.Ct. 2151 (2013).


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      In an order entered August 20, 2014, the PCRA court addressed all

three of Appellant’s pro se filings.      As to the petition raising a “credit for

imprisonment” issue, the PCRA court ordered that Appellant “is to receive

time credit in the above captioned matter from August 16, 2004, as was [the

trial court’s] intent.”     Order, 8/20/14, at 1 (citation omitted).              As to

Appellant’s response and subsequent petition, the PCRA court treated

Appellant’s request for habeas corpus relief as an extension of his second

PCRA petition, and reiterated its intent to dismiss this petition without a

hearing. See generally, Commonwealth v. Peterkin, 722 A.2d 638, 639

n.1 (Pa. 1998) (stating that the PCRA subsumes other post-conviction

remedies).

      Appellant filed a pro se appeal to this Court on September 8, 2014. By

order filed November 3, 2014, this Court quashed Appellant’s pro se appeal

because it was filed from an interlocutory order.                By order entered

November 5, 2014, the PCRA court denied Appellant’s second PCRA petition,

and Appellant filed a timely pro se appeal.         Both Appellant and the PCRA

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

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported    by   the     evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA

court’s findings will not be disturbed unless there is no support for the


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findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).       Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

      Before addressing the issues Appellant presents on appeal, we must

first consider whether the PCRA court properly determined that Appellant’s

petition was untimely.        The timeliness of a post-conviction petition is

jurisdictional.   Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted). Thus, if a petition is untimely, neither an appellate

court nor the PCRA court has jurisdiction over the petition.            Id.   “Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims” raised in an untimely petition. Id.

      Generally, a petition for relief under the PCRA must be filed within one

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

the petitioner proves, an exception to the time for filing the petition.

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000); 42

Pa.C.S.A. § 9545(b)(1). Under these exceptions, the petitioner must plead

and prove that: “(1) there has been interference by government officials in

the presentation of the claim; or (2) there exists after-discovered facts or

evidence;    or   (3)   a   new   constitutional   right   has   been    recognized.”


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Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (citations

omitted). A PCRA petition invoking one of these statutory exceptions must

“be filed within sixty days of the date the claim first could have been

presented.” Gamboa-Taylor, 753 A.2d at 783. See also 42 Pa.C.S.A. §

9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must

be pled in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a) (“Issues not raised before the lower court are waived

and cannot be raised for the first time on appeal.”).

      Appellant’s judgment of sentence became final on or about February 7,

2005, thirty days after the time for filing a direct appeal to this Court had

expired.   42 Pa.C.S.A. § 9545(b)(3).    Therefore, Appellant had to file the

PCRA petition at issue by February 7, 2006, in order for it to be timely. As

Appellant filed his petition on May 23, 2013, it is untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Commonwealth v. Beasley, 741 A.2d 1258, 1261

(Pa. 1999).

      Appellant has failed to plead and prove any exception to the PCRA’s

time bar. Indeed, within his pro se filings, Appellant has not proffered the

applicability of any time-bar exception. Burton, supra. Instead, Appellant

asserts that a question regarding the legality of his sentence can be raised

at any time.    Appellant’s analysis is incomplete; “though not technically


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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.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).

Finally, because Appellant’s judgment of sentence became final in 2006, and

Alleyne has not been held to apply retroactively to a final judgment of

sentence, Appellant cannot establish an exception to the PCRA’s time bar.

See generally, Miller, supra.

      In light of the foregoing, we affirm the PCRA court’s order denying

Appellant post-conviction relief.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/2015




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