J-S09040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

FRANK WINN,

                            Appellant                 No. 417 EDA 2016


                  Appeal from the PCRA Order January 4, 2016
              in the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos.: CP-51-CR-0511411-2004
                            CP-51-CR-0600011-2004
                            CP-51-CR-0904141-2004


BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 28, 2017

        Appellant, Frank Winn, appeals from the January 4, 2016 order

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s September 21, 2016

opinion. On May 16, 2005, Appellant pleaded guilty to attempted murder,

robbery, person not to possess a firearm, and criminal conspiracy.1 On the

same date, the trial court sentenced Appellant to not less than fifteen nor

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2501, 901, 3701(a), 6105(a), and 903, respectively.
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more than thirty years of incarceration. (See Trial Court Opinion, 9/21/16,

at 1).

         On April 24, 2014, Appellant filed a pro se PCRA petition. The court

appointed counsel, who filed an amended PCRA petition on November 10,

2014. On November 19, 2015, the court gave notice of its intent to dismiss

the petition because it was untimely filed and did not invoke an exception to

the PCRA timeliness requirements. See Pa.R.Crim.P. 907(1). On January 4,

2016, the PCRA court dismissed Appellant’s petition as untimely. This timely

appeal followed.2

         Appellant raises the following issue on appeal: “May an illegal sentence

be challenged at any time under the PCRA?” (Appellant’s Brief, at 7).

         We begin by addressing the timeliness of Appellant’s instant PCRA

petition.

         Crucial to the determination of any PCRA appeal is the timeliness
         of the underlying petition.      Thus, we must first determine
         whether the instant PCRA petition was timely filed.            The
         timeliness requirement for PCRA petitions is mandatory and
         jurisdictional in nature, and the court may not ignore it in order
         to reach the merits of the petition. The question of whether a
         petition is timely raises a question of law. Where the petitioner
         raises questions of law, our standard of review is de novo and
         our scope of review plenary.


____________________________________________


2
  Pursuant to the court’s order, Appellant filed a statement of errors
complained of on appeal on February 17, 2016. See Pa.R.A.P. 1925(b).
The court entered its opinion on September 21, 2016. See Pa.R.A.P.
1925(a).



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            A PCRA petition is timely if it is “filed within one year of the
      date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      9545(b)(1). “[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 at the expiration of time for seeking the
      review.” 42 Pa.C.S.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (case

citations and some quotation marks omitted).

      Here, Appellant’s judgment of sentence became final on June 15,

2005, thirty days after the trial court imposed sentence, and Appellant did

not appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Appellant therefore had until June 15, 2006, to file a timely PCRA petition.

See Pa.C.S.A. § 9545(b)(1). He filed the instant petition on April 24, 2014.

Thus, it is patently untimely.

      An untimely PCRA petition may be considered if one of the following

three exceptions applies:

            (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.A. § 9545(b)(1)(i)–(iii); see Brown, supra at 500.                   If an

exception applies, a petitioner must file the PCRA petition “within [sixty]

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days of the date the claim could have been presented.”          42 Pa.C.S.A. §

9545(b)(2).     “[Our Supreme] Court has repeatedly stated it is the

appellant’s burden to allege and prove that one of the timeliness exceptions

applies.”   Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008)

(citation omitted).

      Here, Appellant has failed to invoke the applicability of any of the

timeliness exceptions to the PCRA time bar. (See Appellant’s Brief, at 10-

12). He attempts to argue that the petition is timely because a challenge to

the legality of a “sentence can be raised at any time[.]”          (Id. at 10).

However, “[a]lthough 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) (citation omitted). Accordingly, because Appellant failed to meet his

burden to prove that one of the timeliness exceptions applies, we conclude

that his petition is untimely and the trial court lacked jurisdiction to consider

his claim. See Hawkins, supra at 1253; (Trial Ct. Op., at 4). Thus, we

affirm the order of the PCRA court.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2017




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