J-S30020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                           OF PENNSYLVANIA
                             Appellee

                        v.

    JOHN HENRY MILLER

                             Appellant                     No. 1389 WDA 2017


             Appeal from the PCRA Order entered August 24, 2017
               In the Court of Common Pleas of Fayette County
               Criminal Division at No: CP-26-CR-0001474-2008


BEFORE: BENDER, P.J.E., STABILE, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STABILE, J.:                            FILED AUGUST 21, 2018

        Appellant, John Henry Miller, appeals pro se from the August 24, 2017

order dismissing his petition pursuant to the Post Conviction Relief Act

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

        On January 30, 2009, Appellant pled guilty to two counts of unlawful

possession of a firearm, receiving stolen property, and possession with intent

to deliver a controlled substance.1            On February 9, 2009, the trial court

sentenced him to an aggregate five to ten years of incarceration. Appellant

did not file a direct appeal, and therefore his judgment of sentence was final

on March 11, 2009, the final day in the appeal period. Appellant filed a timely


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1    18 Pa.C.S.A. §§ 6105, 6106, and 3925, and 35 P.S. § 780-113(a)(30).
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first PCRA petition on December 3, 2009, and the PCRA court denied relief on

March 3, 2010. Appellant filed the instant pro se petition on July 19, 2017,

well outside of the PCRA’s one-year time bar.         42 Pa.C.S.A. § 9545(b)(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[.]”).   To obtain review of the merits, Appellant bears the burden of

pleading and proving the applicability of one of the PCRA’s timeliness

requirements set forth at § 9545(b)(1)(i-iii). Commonwealth v. Dickerson,

900 A.2d 407, 410 (Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa.

2006).

       Instantly, Appellant claims his petition is timely because he asserts that

he is serving an illegal sentence. Appellant’s Pro Se Brief at 8 (“[A]n ILLEGAL

sentence is always subject to collateral attack.”) (capitalization in original).

Appellant is incorrect. Although our courts treat legality of a sentence as non-

waivable, a PCRA court does not have jurisdiction over the issue unless the

petition is timely or meets a timeliness exception. Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999). That is, illegality of a sentence does not excuse

compliance with the PCRA’s jurisdictional time bar. The PCRA court did not

err in dismissing Appellant’s petition as untimely.

       Order affirmed.




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J-S30020-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2018




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