J. S08018/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                        Appellee          :
                                          :
                  v.                      :
                                          :
ROBERT ELBERT CHAMBERS,                   :
                                          :
                        Appellant         :     No. 880 WDA 2015

                  Appeal from the PCRA Order May 7, 2015
           in the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0002698-2005
                                       CP-65-CR-0003823-2006

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                           FILED MARCH 17, 2016

      Appellant, Robert Elbert Chambers, appeals pro se from the order

entered in the Westmoreland County Court of Common Pleas dismissing his

third and fifth petitions filed under the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546, as untimely.1 We affirm.

      Regarding Appellant’s first case at CP-65-CR-0002698-2005, this Court

previously concluded that Appellant’s judgment of sentence became final on

October 25, 2010, upon expiration of the time to file a petition for writ of

certiorari with the United States Supreme Court. See Commonwealth v.



1
  This is Appellant’s fifth PCRA petition for CP-65-CR-0002698-2005, and his
third PCRA petition for CP-65-CR-0003823-2006. We are considering these
cases together because Appellant’s pro se PCRA petition included both cases.
The facts of the underlying convictions are not relevant to our disposition.
J. S080018/16

Chambers,      No.   59   WDA   2013    (Pa.Super.   filed   August    12,   2013)

(unpublished memorandum); U.S.Sup.Ct.R. 13 (allowing ninety days to file

petition for writ of certiorari). Regarding Appellant’s second case at CP-65-

CR-0003823-2006, Appellant’s judgment of sentence became final on

January 6, 2009, upon expiration of the time to file a petition for writ of

certiorari with the United States Supreme Court. Appellant filed this PCRA

petition on January 22, 2015, five and six years, respectively, after his

judgments of sentence became final. The PCRA court dismissed the petition

as untimely.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. Appellant raised three issues on appeal:

            a. Whether the trial court erred in the calculation of
            the [time] it took defendant to enter his second
            PCRA post-conviction motion on case # 2698 C
            2005?

            b. The legality of the mandatory sentence and
            whether the petitioner has produced newly
            discovered case log that is retroactive to his situation
            calling for the appellate court to raise and review the
            illegal sentence sua sponte.

            c. Has the petitioner’s sixth amendment rights been
            violated due to the ineffective assistance of counsel
            and is there a reasonable probability of a different
            outcome with effective counsel?

Appellant’s Brief at 4 (capitalization removed).

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported



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by the evidence of record and free of legal error.”      Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Before addressing

the merits of Appellant’s claims, we must first determine whether we have

jurisdiction to entertain the underlying PCRA petition. See Commonwealth

v. Hackett, 956 A.2d 978, 983 (Pa. 2008) (explaining that the timeliness of

a PCRA petition is a jurisdictional requisite).

      Under the PCRA, any PCRA petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 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 the expiration of time for seeking the review.” 42 Pa.C.S. §9545(b)(3).

The PCRA’s timeliness requirements are jurisdictional in nature, and a court

may not address the merits of the issues raised if the PCRA petition was not

timely filed. Commonwealth. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, because Appellant filed the instant petition five and six years

after his judgments of sentence became final, it is facially untimely under

the PCRA.

      Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of the three exceptions set forth

in 42 Pa.C.S. § 9545(b), which provides the following:

      (b) Time for filing petition.



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     (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
     petitioner 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 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.

     (2) Any petition invoking an exception provided in paragraph (1)
     shall be filed within 60 days of the date the claim could have
     been presented.

42 Pa.C.S. § 9545(b)(1)-(2).     See, e.g., Commonwealth v. Lark, 746

A.2d 585, 588 (Pa. 2000) (applying sixty-day timeframe after reviewing

specific facts that demonstrated the claim was timely raised).

     Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(i) and alleges that his “court appointed attorney never

sent [him] notice of this case status.”   In dismissing this claim, the trial

court noted that the Order dated June 23, 2011, indicated that the court

sent a copy to Appellant.      Accordingly, Appellant failed to prove this

timeliness exception under Section 9545(b)(1)(i).




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     With respect to Appellant’s challenge to the legality of his sentence,

Appellant attempts to invoke the timeliness exception under Section

9545(b)(1)(iii) and argues that the trial court imposed illegal mandatory

minimum sentences of five to ten years’ incarceration pursuant to 18 Pa.C.S.

§ 7508(a)(3)(ii) for his two PWID convictions. Appellant relies on Alleyne

v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), as

well as Commonwealth v. Newman, 99 A.3d 86, 98 (Pa.Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015).2

     As long as this Court has jurisdiction over the matter, a legality of

sentencing issue is reviewable and cannot be waived. Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa.Super. 2007); Commonwealth v. Stokes,

38 A.3d 846, 857 (Pa.Super. 2011). However, a legality of sentencing issue

must be raised in a timely filed PCRA petition. See 42 Pa.C.S. § 9545(b)(2);

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although 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”).


2
   Appellant avers that Newman, supra, is “controlling authority.”
Appellant’s Brief at 5. In Newman, this Court held 42 Pa.C.S. § 9712.1,
which imposed a mandatory minimum sentence for possessing a firearm in
close proximity to narcotics, unconstitutional. Appellant fails to develop his
argument here and explain why Newman controls his mandatory sentence
pursuant to 18 Pa.C.S. § 7508(a)(3)(ii). This defect is noteworthy because
it prevents Appellant from relying on the date of the Newman decision
rather than the date of the Alleyne decision for purposes of the sixty-day
rule under 42 Pa.C.S. § 9545(b)(1)(iii). Appellant’s reliance on Newman is,
thus, misplaced.



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Appellant must present an illegal sentencing claim in a timely PCRA petition

over which we have jurisdiction.          See Fahy, supra at 223, and

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa.Super. 2014) (en banc)

(explaining that the decision in Alleyne does not invalidate a mandatory

minimum sentence when presented in an untimely PCRA petition).

     Here, the United States Supreme Court decided Alleyne on June 17,

2013. In order to invoke the “constitutional right” exception under 42

Pa.C.S. § 9545(b)(1)(iii), Appellant needed to submit his PCRA petition

within 60 days of June 17, 2013. See Commonwealth v. Boyd, 923 A.2d

513, 517 (Pa.Super. 2007) (stating that the 60-day period begins to run

upon the date of the underlying judicial decision). Appellant filed this PCRA

petition on January 22, 2015, well after the 60-day deadline of August 16,

2013. After concluding that Appellant failed to prove the applicability of one

of the timeliness exceptions, the PCRA court properly dismissed Appellant’s

PCRA petition as untimely.

     The Honorable Rita Donovan Hathaway, sitting as the PCRA court, has

authored a comprehensive, thorough, and well-reasoned opinion, citing to

the record and relevant case law in addressing Appellant’s claims on appeal.

After a careful review of the parties’ arguments, and the record, we affirm

on the basis of the PCRA court’s opinion.     See PCRA Court Opinion, filed

5/7/15, at 4-15 (holding that Appellant failed to timely file instant petition

and failed to invoke exception to PCRA time-bar).



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2016




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