J-S73025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CORY WASHINGTON

                            Appellant               No. 814 MDA 2014


                 Appeal from the PCRA Order of April 28, 2014
                In the Court of Common Pleas of Berks County
               Criminal Division at No.: CP-06-CR-0004242-2008


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 19, 2014

       Cory Washington appeals pro se from the order dismissing his second

petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-46. We affirm.

       On April 23, 2009, Washington entered an open guilty plea to delivery

of a controlled substance and criminal conspiracy.1    The court sentenced

Washington to an aggregate term of not less than eight nor more than

sixteen years’ incarceration on December 16, 2009. Washington did not file

a direct appeal, but filed a pro se motion to modify sentence nunc pro tunc

on May 17, 2010. The court, treating the motion as a first PCRA petition, 2
____________________________________________


1
       35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1)(2).
2
     See Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super.
2011) (holding that a defendant’s motion to correct his sentence was
(Footnote Continued Next Page)
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appointed counsel. On June 22, 2010, counsel filed a petition to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),

concluding that there were no meritorious issues raised in Washington’s pro

se motions or letters.

      The court granted the motion to withdraw on June 22, 2010, and on

June 30, 2010, issued notice of its intention to dismiss Washington’s petition

pursuant to Pa.R.Crim.P. 907.           Washington responded pro se, contending

that PCRA counsel improperly argued that his sentence was illegal when

Washington wished to argue that his sentence was excessive.          The PCRA

court concluded that this new argument was meritless, because “our law

does not allow a defendant to raise an excessive sentence claim in a PCRA

petition,” and dismissed the petition on September 2, 2010.              Order,

9/2/2010. Washington filed an untimely request for extension of time to file

a notice of appeal on October 22, 2010, which the PCRA court denied on

October 25, 2010.

      On May 9, 2011, Washington filed a second pro se PCRA petition. The

PCRA court provided notice of intent to dismiss the petition as untimely on

May 12, 2011. Washington responded, and the court dismissed the petition

on May 31, 2011. Washington timely appealed, and this Court affirmed the
                       _______________________
(Footnote Continued)

properly addressed as a PCRA petition because “any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition”).




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PCRA court’s decision.      See Commonwealth v. Washington, No. 1041

MDA 2011 (Pa. Super. filed July 19, 2012).

      On January 10, 2013, Washington filed a pro se petition for writ of

habeas corpus. The court, concluding that his “allegations could have been

addressed through the regular course of direct appellate review or post-

conviction   relief,”   denied   the   petition   on   January   24,   2013.   See

Commonwealth v. McNeil, 665 A.2d 1247, 1250 (Pa. Super. 1995)

(“Pennsylvania law explicitly states that in cases where a person has been

restrained by virtue of sentence after conviction for a criminal offense, the

writ of habeas corpus shall not be available if a remedy may be had by

post[-]conviction hearing proceedings authorized by law.”).

      On April 10, 2014, Washington filed the instant pro se motion to

modify and reduce sentence. The PCRA court, observing that Washington’s

motion raised an identical challenge to the legality of his sentence claimed in

his first PCRA petition, concluded that he was not entitled to appointment of

counsel or post-conviction collateral relief and dismissed the petition on April

28, 2014. Washington timely appealed on May 8, 2014, and on the same

day, filed a statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). The PCRA court entered a statement in lieu of an opinion

pursuant to Pa.R.A.P. 1925(a) on July 9, 2014.

      Washington raises two questions for our review:

      I.   Whether the Commonwealth and sentencing [court]
      sentenced [Washington] to a mandatory sentence, where they


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      failed to meet the burden of proving beyond a reasonable doubt,
      that a mandatory sentence did apply[?]

      II.   Whether trial counsel failed to challenge, where [the court]
      went with an aggravated sentence without [cause] [sic]. Also
      appella[te] counsel for deeming that there was no error in
      sentence process, where it was clearly unconstitutional, where
      the “element” of the crime was not proving beyond a reasonable
      doubt[?]

Washington’s Brief at 4.

      When reviewing the denial of a PCRA petition, our scope of
      review is limited by the parameters of the act. Our standard of
      review permits us to consider only whether the PCRA court’s
      determination is supported by the evidence of record and
      whether it is free from legal error. Moreover, in general we may
      affirm the decision of the [PCRA] court if there is any basis on
      the record to support the [PCRA] court’s action; this is so even if
      we rely on a different basis in our decision to affirm.

Commonwealth v. Heilman, 867 A.2d 542, 544 (Pa. Super. 2005)

(citation omitted).

      Preliminarily, because the time limits imposed by the PCRA are

jurisdictional and must be strictly construed, see Commonwealth v. Fahy,

959 A.2d 312, 315 (Pa. 2008), we will begin by addressing the timeliness of

Washington’s motion to modify and reduce sentence, properly construed as

a serial petition pursuant to the PCRA. See Jackson, 30 A.3d at 521.

      A PCRA petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment [of sentence] becomes

final[.]” 42 Pa.C.S.A. § 9545(b)(1).

      Pennsylvania law makes clear no court has jurisdiction to hear
      an untimely PCRA petition.      Statutory time restrictions are
      mandatory and jurisdictional in nature, and may not be altered

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     or disregarded to reach the merits of the claims raised in the
     petition. . . .

     The three statutory exceptions to the timeliness provisions in the
     PCRA allow for very limited circumstances under which the late
     filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
     To invoke an exception, a petition must allege and the petitioner
     must prove:

        (i) the failure to raise a 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 by this section and has been held by that court to
        apply retroactively.

     42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).       The PCRA specifically
     provides that a petitioner raising one of the statutory exceptions
     to the timeliness requirements must affirmatively plead and
     prove the exception. Id. The statutory exceptions to the
     timeliness requirements of the PCRA are also subject to a
     separate time limitation and must be asserted within sixty (60)
     days of the date the claim could have been first presented. 42
     Pa.C.S.A. § 9545(b)(2). As such, when a PCRA [petition] is not
     filed within one year of the expiration of direct review, or not
     eligible for one of the exceptions, or entitled to one of the
     exceptions, but not filed within 60 days of the date that the
     claim could have been first brought, the trial court has no power
     to address the substantive merits of a petitioner’s PCRA claims.

Commonwealth v. Taylor, 933 A.2d 1035, 1038-39 (Pa. Super. 2007)

(footnote, quotation marks and case citations omitted). Accordingly, when a

petition is filed outside the one-year time limitation, “our review focuses on



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whether Appellant has pled and proven that one of the three limited

exceptions     to    the    timeliness     requirements    of   the   PCRA   apply.”

Commonwealth v. Wilson, 824 A.2d 331, 335 (Pa. Super. 2003) (en

banc).

       Here, Washington’s judgment of sentence became final on January 15,

2010. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 903(c)(3) (“In a

criminal case in which no post-sentence motion has been filed, the notice of

appeal shall be filed within 30 days of the imposition of the judgment of

sentence in open court.”).           Hence, in order to comply with the filing

requirements of the PCRA, Washington’s petition had to be filed by January

18, 2011.3 Because Washington’s petition was filed on April 10, 2014, it is

patently untimely and the PCRA court lacked jurisdiction to review it unless

he pleaded and proved one of the statutory exceptions to the time bar under

42 Pa.C.S.A. § 9545(b)(1).

       In the instant case, Washington cites to the third exception, arguing

that “[t]he holding [of] Alleyne [v. United States, 133 S. Ct. 2151

(2013)], renders unconstitutional at least three relevant provisions of the

Pennsylvania Mandatory Minimum Statutes.”                 Washington’s Brief at 9.

However, the Supreme Court decided Alleyne on June 17, 2013, and

Washington’s petition, filed 297 days later, fell well outside the sixty-day
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3
     January 15, 2011 fell on a Saturday, and Monday, January 17, 2011,
was Martin Luther King, Jr. Day, a federal holiday.




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window in which he could have asserted an exception to the time bar on this

ground.   See 42 Pa.C.S.A. § 9545(b)(2). Accordingly, the PCRA court did

not err or abuse its discretion in dismissing Washington’s petition when it

was patently untimely.      See Heilman, 867 A.2d at 544.           Because

Washington’s petition is untimely, we are without jurisdiction to address the

merits of his issues. See Taylor, 933 A.2d at 1038-39.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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