J-S03007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER POLLER,

                            Appellant                 No. 1181 EDA 2017


              Appeal from the PCRA Order Entered March 20, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1124322-1993


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 28, 2018

        Appellant, Christopher Poller, appeals pro se from the post-conviction

court’s March 20, 2017 order denying his petition for writ of habeas corpus,

which the court treated as untimely petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        The facts of Appellant’s underlying criminal conviction are not

necessary to our disposition of his appeal. The PCRA court summarized the

procedural history of Appellant’s case, as follows:

             On June 2, 1994, following a jury trial before the
        Honorable Paul Ribner, [Appellant] was convicted of second
        degree murder, criminal conspiracy, robbery and possession of
        an instrument of crime. On December 7, 1994, Judge Ribner
        imposed a sentence of life imprisonment without parole for the
        murder conviction, and concurrent terms of imprisonment for the
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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     other convictions. [Appellant] filed a direct appeal and the
     Pennsylvania Superior Court affirmed the trial court’s judgment
     of sentence on May 8, 1996.2 The Pennsylvania Supreme Court
     denied allocator December 20, 1996.3
        2 Commonwealth v. Poller, 679 A.2d 849 (Pa. Super.
        1996) (unpublished memorandum).
        3   Commonwealth v. Poller, 687 A.2d 377 (Pa. 1996).

        [Appellant] filed his first pro se petition for collateral relief
     pursuant to the [PCRA] on December 15, 1997. Counsel was
     appointed and subsequently filed a “no merit” letter pursuant to
     Turner/Finley.5      On February 25, 1999, the PCRA court
     dismissed [Appellant’s] petition. The Pennsylvania Superior
     [C]ourt affirmed the dismissal on October 17, 2000, and the
     Pennsylvania Supreme Court denied allocatur on March 30,
     2001.6 Thereafter, [Appellant] filed several PCRA petitions. All
     were denied.
        5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
        Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
        1988).
        6 Commonwealth v. Poller, 767 A.2d 1112 (Pa. Super.
        2000) (unpublished memorandum), appeal denied, 786
        A.2d 987 (Pa. 2001).

        On December 19, 2016, [Appellant] filed the instant pro se
     PCRA petition, styled as a writ of habeas corpus. This court sent
     a notice of its intent to dismiss7 the petition as untimely without
     exception on January 31, 2017. [Appellant] filed a response to
     the 907 notice on February 10, 2017. The PCRA petition was
     formally dismissed by this court on March 20, 2017. [Appellant]
     timely filed a notice of appeal to the Pennsylvania Superior Court
     on April 3, 2017.
        7   Pursuant to Pa.R.Crim.P. 907.

PCRA Court Opinion (PCO), 5/22/17, at 1-2.

     The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

statement, but it filed a Rule 1925(a) opinion on May 22, 2017.        Herein,

Appellant raises the following issue for our review: “The lower court abused


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its discretion when it dismissed the petition filed by [] Appellant and

pertaining to this instant case.” Appellant’s Brief at 3.

      In the Argument section of Appellant’s brief, he contends that the

PCRA court erred by treating his writ of habeas corpus as a PCRA petition,

where his sentencing claim is not cognizable under the PCRA. According to

Appellant, the statute under which he was sentenced, 18 Pa.C.S. § 1102(b),

“violates due process and is unconstitutional, and void under the vagueness

doctrine, because the statute fails to give a person of ordinary intelligence

fair notice that its true penalty is life imprisonment ‘without parole.’”

Appellant’s Brief at 7. Appellant avers that the PCRA does not offer relief for

this claim, because “the PCRA … provides ‘only’ for challenges to sentences

that have been imposed in excess of the lawful maximum.”                    Id. at 9

(emphasis omitted).     Thus, Appellant maintains that his challenge to the

constitutionality of section 1102(b) should have been considered by the

lower court as a writ of habeas corpus claim.

      We disagree. Appellant is challenging the legality of his sentence, and

our Supreme Court has stated that, “legality of sentence is always subject to

review within the PCRA” even where, as here, the claim is not grounded on

an   assertion   that   the        sentence    exceeds     the   lawful   maximum.

Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (finding that

the appellant was not precluded from obtaining relief under the PCRA where

he alleged that his sentence was illegal because the statute under which his

sentence   was    imposed     is    unconstitutional     under   Alleyne)   (quoting

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Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)). Therefore, the

lower court did not err in treating Appellant’s writ of habeas corpus as a

PCRA petition.

      Because Appellant’s petition presents a cognizable PCRA claim, we

must next assess the timeliness of his 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.            See Commonwealth v.

Bennett, 930 A.2d 1264, 1267 (Pa. 2007). 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 [Appellant] 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 [Appellant] 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



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            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, as the PCRA court points out, Appellant’s “judgment of sentence

became final on or about March 20, 1997, ninety (90) days after the

Pennsylvania Supreme Court denied allocator and the time for filing a

petition for writ of certiorari with the United States Supreme Court expired.”

PCO at 4.     Therefore, his present petition, filed on August 13, 2015, is

patently untimely and, for this Court to have jurisdiction to review the merits

thereof, Appellant must prove that he meets one of the exceptions to the

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

      Appellant wholly fails to meet this burden, as he does not argue the

applicability of any timeliness exception. Instead, he merely claims that his

petition does not raise a claim that is cognizable under the PCRA, and he

then proceeds to discuss why 18 Pa.C.S. § 1102(b) is unconstitutionally

vague.    Because, for the reasons stated supra, Appellant’s sentencing

challenge is reviewable under the PCRA, and he fails to plead, let alone

prove, the applicability of any timeliness exception, we do not have

jurisdiction to address the merits of his sentencing argument. Accordingly,

the record supports the PCRA court’s decision to dismiss, as untimely,

Appellant’s petition, and we ascertain no legal error in that determination.

See Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007) (stating

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that an appellate court’s standard of review regarding an order denying a

petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/18




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