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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
WILLIAM HERNANDEZ AKA,                      :
SAMUEL LOPEZ, DEFENDANT                     :
                                            :
                          Appellant         :     No. 2813 EDA 2014

                Appeal from the PCRA Order September 9, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0110641-1995
                                         CP-51-CR-0308061-1995

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JUNE 30, 2015

        Appellant, William Hernandez aka Samuel Lopez, appeals pro se from

the order entered in the Philadelphia County Court of Common Pleas

dismissing as untimely his petition for relief filed pursuant to the Post

Conviction Relief Act1 (“PCRA”). We affirm.

        The PCRA court summarized the procedural history of this case as

follows:

              On September 27, 1995, [Appellant] entered into a
           guilty plea before the Honorable Nitza Quinonas to
           Burglary, and Criminal Conspiracy. In accordance with the
           plea agreement, [Appellant] was sentenced to an

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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          aggregate term of imprisonment of 9-23 months.          No
          direct appeal was filed.

             [Sixteen years later, o]n November 28, 2011,
          [Appellant] filed his first PCRA petition. Upon review, the
          Honorable Nitza Quinones denied the petition for lack of
          standing on January 30, 2012. No appeal was filed.

             On March 6, 2013, [Appellant] filed the instant PCRA
          petition, his second.

PCRA Ct. Op., 10/29/14, at 1.      The PCRA court dismissed the petition.2

This timely appeal followed.   Appellant was not ordered to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. The PCRA court filed

a Pa.R.A.P. 1925(a) memorandum opinion.

      Appellant raises the following issues for our review:

          1. Should [Appellant’s] claims have been looked at as a
          coram nobis as they were originally presented?

          2. Should [Appellant’s] claims have been looked at in
          accordance with the United States Supreme Court’s
          Rulings in Murr[a]y v. Carrier, 477 U.S. 478 [(1986)],
          and Schlup v. Delo, 513 U.S. 298 [(1995)], as an “actual
          innocence” claim.

          3. Should the lower court have addressed the jurisdictional
          question.

Appellant’s Brief at ii.

      Appellant contends the PCRA court erroneously viewed his petition as a

PCRA petition, when instead he intended it to be a writ of coram nobis. Id.

2
 We note the PCRA court found it lacked jurisdiction to consider the petition
because Appellant was no longer serving his sentence. See 42 Pa.C.S. §
9543(a)(1)(iii).  “We can affirm the trial court on any ground.”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).



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at 3. He argues he is actually innocent and is a victim of a miscarriage of

justice. Id. at 4.

      As a prefatory matter, we consider whether the PCRA court had

jurisdiction to entertain the underlying PCRA petition.

             We . . . turn to the time limits imposed by the PCRA, as
         they implicate our jurisdiction to address any and all of
         Appellant’s claims. To be timely, a PCRA petition must be
         filed within one year of the date that the petitioner’s
         judgment of sentence became final, unless the petition
         alleges and the petitioner proves one or more of the
         following statutory exceptions:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            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 period provided in this section and has been held
            by that court to apply retroactively.

         42 Pa.C.S. § 9545(b)(1).

            We emphasize that it is the petitioner who bears the
         burden to allege and prove that one of the timeliness
         exceptions applies. In addition, a petition invoking any of
         the timeliness exceptions must be filed within 60 days of
         the date the claim first could have been presented. 42
         Pa.C.S. § 9545(b)(2). . . .

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted).


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      Our Supreme Court has stated:

         This Court has repeatedly stated that the PCRA timeliness
         requirements are jurisdictional in nature and, accordingly,
         a PCRA court cannot hear untimely PCRA petitions. In
         addition, we have noted that the PCRA confers no
         authority upon this Court to fashion ad hoc equitable
         exceptions to the PCRA time-bar in addition to those
         exceptions expressly delineated in the Act. We have also
         recognized     that    the PCRA’s    time   restriction  is
         constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

      Under the PCRA, “all petitions, including second and subsequent ones,

must be filed within one year of the date on which judgment becomes final,

unless one of the three statutory exceptions . . . applies.” Commonwealth

v. Yarris, 731 A.2d 581, 586 (Pa. 1999); 42 Pa.C.S. § 9545(b)(1).         “[A]

judgment 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 seeking the

review.” 42 Pa.C.S. § 9545(b)(3).

      In the instant case, Appellant was sentenced on September 27, 1995.

He did not file a direct appeal. Thus his judgment of sentence became final

on October 27, 1995. See 42 Pa.C.S. § 9545(b)(3) (“[A] judgment 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 seeing the review.”) Appellant generally had



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one year, or until October 28, 1996,3 to file a PCRA petition. See 42 Pa.C.S.

§ 9545(b)(1); Marshall, 947 A.2d at 719; see also Commonwealth v.

Lawson, 90 A.3d 1, 4-5 (Pa. Super 2014) (holding defendant’s second

petition did not qualify for grace proviso–allowing first PCRA petition to be

filed by January 16, 1997, when judgment of sentence became final prior to

enactment date of PCRA amendments–as it was not his first petition nor was

it filed before January 16, 1997).    Appellant filed the instant petition on

March 6, 2013; therefore, it is patently untimely.      As such, we review

whether Appellant has properly pleaded and proved any of the PCRA

timeliness exceptions.

      Appellant did not plead and prove any exception to the PCRA’s

timeliness requirement. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Marshall, 947

A.2d at 719-20. His PCRA petition is untimely, divesting the PCRA court of

jurisdiction.

      Moreover, Appellant’s claim that his petition is not a PCRA petition but

rather a writ of coram nobis is meritless.       Section 9542 of the PCRA

provides, “The action established in this subchapter shall be the sole means

of obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist when this subchapter


3
  October 27, 1996 was a Sunday. See 1 Pa.C.S. § 1908 (providing that
when last day of any period of time referred to in any statute falls on
Saturday, Sunday, or legal holiday, such day shall be omitted from
computation).



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takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S. §

9542 (emphasis added). Thus, Appellant’s argument that his petition is not

governed by the PCRA is meritless, as section 9542 provides that the PCRA

encompasses writs of coram nobis. See id.

     Accordingly, we affirm the order below dismissing the PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




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