J-S54003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES RAYMOND BORCHERT,

                        Appellant                   No. 205 WDA 2016


          Appeal from the PCRA Order Entered January 12, 2016
              In the Court of Common Pleas of Butler County
           Criminal Division at No(s): CP-10-CR-0001932-2007


BEFORE: BENDER, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED AUGUST 24, 2016

      Appellant, James Raymond Borchert, appeals pro se from the post-

conviction court’s January 12, 2016 order denying his “Motion to Modify and

Reduce Sentence Nunc Pro Tunc,” which the court considered an untimely-

filed petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541-9546. We affirm.

      In September of 2008, a jury convicted Appellant of third-degree

murder and voluntary manslaughter based on evidence that Appellant shot

and killed his wife and her paramour in Butler County, Pennsylvania.

Appellant was sentenced on October 14, 2008, to an aggregate term of 23 to

46 years’ incarceration. He filed a timely direct appeal, and after this Court

affirmed his judgment of sentence, our Supreme Court denied his petition

for allowance of appeal on November 24, 2010.           Commonwealth v.
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Borchert, 990 A.2d 37 (Pa. Super. 2009) (unpublished memorandum),

appeal denied, 13 A.3d 474 (Pa. 2010). Appellant did not seek review by

the United States Supreme Court and, thus, his judgment of sentence

became final on February 22, 2011. See 42 Pa.C.S. § 9545(b)(3) (stating

that a judgment of sentence becomes final at the conclusion of direct review

or the expiration of the time for seeking the review); Commonwealth v.

Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing that under the

PCRA, petitioner’s judgment of sentence becomes final ninety days after our

Supreme Court rejects his or her petition for allowance of appeal since

petitioner had ninety additional days to seek review with the United States

Supreme Court).

      On December 29, 2011, Appellant filed a petition for writ of habeas

corpus, which the trial court treated as a timely-filed PCRA petition. Counsel

was appointed and an amended petition was filed on Appellant’s behalf.

After the court conducted an evidentiary hearing, it denied Appellant’s

petition in September of 2012.    Appellant timely appealed, and this Court

affirmed, after which our Supreme Court denied Appellant’s petition for

allowance of appeal.    Commonwealth v. Borchert, 81 A.3d 1101 (Pa.

Super. 2013) (unpublished memorandum), appeal denied, 78 A.3d 1089

(Pa. 2013).

      On December 21, 2015, Appellant filed a pro se “Motion to Modify

Sentence Nunc Pro Tunc.”      Therein, he raised various claims, including

challenges to the legality of his sentence, the discretionary aspects of his

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sentence, and the court’s failure to suppress a statement he gave to police.

Appellant    also   asserted     in   the   motion   that   his   trial   counsel   acted

ineffectively, and that the Commonwealth’s charging him with ‘open’

homicide violated his due process rights.            The court treated Appellant’s

motion as a PCRA petition and, on December 28, 2015, it issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without a

hearing.    Appellant filed a pro se response, but on January 13, 2016, the

court issued an order dismissing Appellant’s petition on the basis that it was

untimely filed.

       Appellant filed a timely notice of appeal with this Court.             While the

PCRA court initially ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, it subsequently issued another

order stating that a Rule 1925(b) statement was unnecessary. The court did

not file an opinion, but set forth its reasons for dismissing Appellant’s

petition in its January 13, 2016 order. On appeal, Appellant presents one

issue for our review: “Whether the [PCRA] [c]ourt erred in dismissing

Appellants [sic] Motion to Modify and Reduce Sentence Nunc Pro Tunc.”

Appellant’s Brief at 5 (unnecessary capitalization omitted).1


____________________________________________


1
  The Commonwealth asserts that we should quash or dismiss this appeal
because Appellant’s brief fails to comply with the Rules of Appellate
Procedure. See Commonwealth’s Brief at 2-3. Because we can ascertain
Appellant’s arguments, and conduct a meaningful review thereof, we decline
to quash or dismiss his appeal based on his briefing defects.



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     We begin by addressing Appellant’s assertion that the court erred by

treating his motion as a PCRA petition.

     In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007),
     the learned Judge, now Justice, McCaffery, collected cases and
     reiterated that all motions filed after a judgment of sentence is
     final are to be construed as PCRA petitions. Id. at 591 (citing
     Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super.
     2002)); Commonwealth v. Evans, 866 A.2d 442 (Pa. Super.
     2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.
     Super. 2004); Commonwealth v. Guthrie, 749 A.2d 502, 503
     (Pa. Super. 2000).

     More recently, in Commonwealth v. Jackson, 30 A.3d 516
     (Pa. Super. 2011), this Court held that a defendant's motion to
     correct his illegal sentence was properly addressed as a PCRA
     petition, stating broadly, “any petition filed after the judgment of
     sentence becomes final will be treated as a PCRA petition.” Id.
     at 521 (quoting Johnson, supra).

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).                 Here,

Appellant titled his motion as a “Motion to Modify Sentence Nunc Pro Tunc,”

thus indicating it should be treated as a PCRA petition under Jackson. More

importantly, the substantive claims asserted by Appellant in that motion -

discussed supra - are cognizable under the PCRA.          See 42 Pa.C.S. §

9543(a)(2).   Consequently, the court did not err in treating Appellant’s

motion as a PCRA petition.

     Next, we must assess the timeliness of Appellant’s petition, because

the PCRA time limitations implicate our jurisdiction and may not be altered

or disregarded in order to address the merits of a petition. Commonwealth

v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded to address


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the merits of the petition). Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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:

            (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s judgment of sentence became final in February of

2011 and thus, his present petition filed in December of 2015 is patently

untimely.   For this Court to have jurisdiction to review the merits thereof,




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including Appellant’s challenge to the legality of his sentence,2 Appellant

must prove that he meets one of the exceptions to the timeliness

requirements set forth in 42 Pa.C.S. § 9545(b).

       Appellant has failed to do so.          In his brief, Appellant reiterates the

arguments presented in his pro se petition. Specifically, he challenges his

sentence (both its discretionary aspects and legality); raises claims of

ineffective assistance of trial counsel; contends that his constitutional rights

were violated by the Commonwealth’s charging him with ‘open’ homicide;

and avers that the trial court erred by denying his motion to suppress

statements he made to police. Appellant makes no attempt to argue that

any of these claims meet a timeliness exception, and we cannot see any way

in which one would do so. Accordingly, the PCRA court’s determination that

Appellant’s petition is untimely and meets no timeliness exception is

supported by the record and free of legal error. Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007) (setting forth the standard of appellate

review regarding an order denying a PCRA petition). Therefore, we affirm.


____________________________________________


2
  See Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (holding
that claims challenging the legality of sentence are subject to review within
the PCRA, but must first satisfy the PCRA’s time limits)




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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