J-S16011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JEFFREY TYRONE TONEY

                            Appellant                 No. 1283 MDA 2014


                      Appeal from the Order July 14, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001437-2009
                                          CP-36-CR-0001721-2008
                                          CP-36-CR-0001780-2009
                                          CP-36-CR-0002423-2009
                                          CP-36-CR-0003183-2009
                                          CP-36-CR-0004413-2007
                                          CP-36-CR-0004417-2007


BEFORE: PANELLA, J., OLSON, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                               FILED MAY 07, 2015

        Appellant, Jeffrey Tyrone Toney, appeals pro se from the order entered

July 14, 2014, in the Court of Common Pleas of Lancaster County, which

denied as untimely Toney’s petition filed pursuant to the Post Conviction

Relief Act,1 styled as an Application for Relief. We affirm.

        On March 1, 2010, Toney pled guilty to one count of persons not to

possess firearms, fleeing or attempting to elude, accident involving death or

personal injury, and recklessly endangering another person, two counts of

____________________________________________


1
    42 Pa.C.S.A. § 9541, et seq.
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false identification to law enforcement, and three counts of delivery of a

controlled substance.    The trial court sentenced Toney pursuant to a

negotiated plea agreement to six to 15 years’ imprisonment.       The court

determined that Toney was ineligible for the Recidivism Risk Reduction

Incentive (RRRI) program because he was sentenced pursuant to a

mandatory sentence. This Court affirmed Toney’s judgment of sentence on

appeal. See Commonwealth v. Toney, 405 MDA 2010 (Pa. Super., filed

9/14/10) (unpublished memorandum).        Toney did not file a petition for

allowance of appeal with the Pennsylvania Supreme Court.

     On September 2, 2011, Toney filed a pro se PCRA petition. The PCRA

court appointed counsel who filed an amended petition. Following a hearing,

the PCRA court denied Toney’s petition. On appeal, this Court affirmed the

order denying Toney’s PCRA petition, and the Supreme Court denied

allocatur. See Commonwealth v. Toney, 52 MDA 2013 (Pa. Super., filed

8/21/13) (unpublished memorandum), appeal denied, 87 A.3d 815 (Pa.

2014) (Table).

     On July 11, 2014, Toney filed an Application for Relief, which the PCRA

court properly treated as a second PCRA petition.            The Application

challenged, among other things, the legality of the sentences imposed

pursuant to the negotiated plea agreement. The PCRA court denied Toney’s

petition on July 12, 2014. This timely pro se appeal followed.

     Toney raises the following issues for our review.




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      1) Did the lower court commit error when it denied Appellant’s
         Application for relief that raised challenges to the legality of
         his sentence?

      2) Can a global negotiated plea agreement serve to circumvent
         Pennsylvania’s mandatory minimum sentencing guidelines or
         the statutory language and legislative intent of sentencing
         statutes pursuant to Pennsylvania Statutory Construction Act?

      3) Is there a violation of Fourteenth Amendment Due Process for
         lack of proper sentencing procedures and lack of statutory
         authorization for the sentences imposed?

Appellant’s Brief at 5.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”        Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013). In order to be eligible

for PCRA relief, a petitioner must plead and prove by a preponderance of the

evidence that his conviction or sentence arose from one or more of the

errors listed at 42 Pa.C.S.A. § 9543(a)(2).    These issues must be neither

previously litigated nor waived.   See 42 Pa.C.S.A. § 9543(a)(3).       “[T]his

Court applies a de novo standard of review to the PCRA court’s legal

conclusions.”   Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)

(citation omitted).

      Before we may address the merits of a PCRA petition, we must first

consider the petition’s timeliness because it implicates the jurisdiction of

both this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d

44, 52 (Pa. Super. 2011) (citation omitted), appeal denied, 50 A.3d 121 (Pa.

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2012).    We may raise issues concerning our appellate jurisdiction sua

sponte.   Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa. Super.

2007). A court is without jurisdiction if the PCRA petition is untimely. See

id.   The PCRA “confers no authority upon this Court to fashion ad hoc

equitable exceptions to the PCRA time-bar[.]” Commonwealth v. Watts,

23 A.3d 980, 983 (Pa. 2011) (citation omitted).       This accords finality to

collateral review. See id. “A petition for relief under the PCRA, including a

second or subsequent petition, must be filed within one year of the date the

judgment becomes final unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition, set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is met.”     Commonwealth v.

Harris, 972 A.2d 1196, 1199-1200 (Pa. Super. 2009).

      Section 9545 provides, in relevant part, as follows.

            (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 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


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                   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.A. § 9545(b)(1)-(2).

      Toney was sentenced to a term of six to 15 years’ imprisonment on

March 1, 2010.         As noted, this Court affirmed Appellant’s judgment of

sentence on September 14, 2010, and Toney did not file a petition for

allowance of appeal with our Supreme Court.           Thus, Toney’s judgment of

sentence became final on October 14, 2010, 30 days after this Court

affirmed his judgment of sentence and when the time to file a petition for

allowance of appeal with our Supreme Court expired.             See 42 Pa.C.S.A.

§ 9545(b)(3); see also Pa.R.A.P. 1113.

      Therefore, in order to be timely, Toney’s PCRA petition had to be filed

by October 14, 2011.          As noted, Appellant filed his second pro se PCRA

petition   on   July    11,   2014—nearly     three   years   past   the   deadline.

Accordingly, Toney’s petition is untimely, and he must plead and prove one

of the three enumerated statutory exceptions to the time-bar.


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      Toney does not argue the applicability of the § 9545(b)(1) statutory

exceptions. We further note that Toney’s claim that his sentence was illegal

does not circumvent the PCRA time bar. See Commonwealth v. Jackson,

30 A.3d 516, 521-522 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa.

2012) (untimely PCRA petition raising legality of sentence claim does not

surmount jurisdictional limits of PCRA). Accordingly, we find no error in the

PCRA court’s dismissal of Toney’s petition as untimely filed.

      Order affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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