J-S03035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 HARRY DARBY                              :
                                          :   No. 635 EDA 2017
                     Appellant

                Appeal from the PCRA Order January 9, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001961-2010


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

MEMORANDUM BY STEVENS, P.J.E.:                    FILED FEBRUARY 27, 2018

      Appellant Harry Darby appeals from the order of the Court of Common

Pleas of Philadelphia County dismissing Appellant’s petition under the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. As Appellant’s

petition is untimely, we affirm.

      On August 16, 2011, Appellant entered a negotiated guilty plea to

aggravated    assault,   robbery,   conspiracy,   burglary,   possession   of   an

instrument of crime and violations of the Uniform Firearms Act (VUFA). On

that day, Appellant received an aggregate sentence of seven to fourteen years’

imprisonment.      On January 15, 2013, this Court affirmed the judgment of

sentence. On June 10, 2013, the Supreme Court denied Appellant’s petition

for allowance of appeal.




____________________________________
* Former Justice specially assigned to the Superior Court.
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      On January 27, 2016, Appellant filed a pro se PCRA petition, challenging

the effectiveness of his trial counsel in advising him to enter a guilty plea. On

November 30, 2016, newly-appointed counsel sought to withdraw his

representation and filed a “no-merit” letter pursuant to Commonwealth v.

Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley,

550 A.2d 213 (Pa.Super. 1988).       On December 10, 2016, the PCRA court

issued notice of its intent to dismiss Appellant’s petition without a hearing

pursuant to Pa.R.Crim.P. 907. On January 9, 2017, the PCRA court dismissed

Appellant’s petition on the merits and allowed counsel to withdraw. The PCRA

court did not determine whether Appellant’s petition was timely. On February

2, 2017, Appellant filed this timely appeal.

      When reviewing the denial of a PCRA petition, our standard of review is

limited to examining whether the PCRA court's determination is supported by

evidence of record and whether it is free of legal error. Commonwealth v.

Smallwood, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted).

Before we can reach the merits of this petition, however, we must determine

whether this PCRA petition was timely filed.         “[T]he PCRA's timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.” Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super.

2011) (citations omitted).

      Generally, a PCRA petition must be filed within one year of the date the

judgment of sentence becomes final unless the petitioner meets his burden to

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plead and prove one of the exceptions enumerated in 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability to raise a claim

as a result of governmental interference; (2) the discovery of previously

unknown facts or evidence that would have supported a claim; or (3) a newly-

recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). However,

the PCRA limits the reach of the exceptions by providing that a petition

invoking any of the exceptions must be filed within 60 days of the date the

claim first could have been presented. Leggett, 16 A.3d at 1146 (citing 42

Pa.C.S.A. § 9545(b)(2)).

      As noted above, the trial court sentenced Appellant on August 16, 2011,

this Court affirmed the judgment of sentence on January 15, 2013, and the

Supreme Court denied allowance of appeal on June 10, 2013. Appellant did

not seek review in the Supreme Court of the United States.                 Section

9545(b)(3) of the PCRA provides that a judgment of sentence becomes final

at the conclusion of direct review or the expiration of the time for seeking the

review. 42 Pa.C.S.A. § 9543(b)(3). Appellant’s judgment of sentence became

final on September 8, 2013, after the expiration of the ninety-day period in

which he was allowed to seek review in the U.S. Supreme Court. See U.S.

Sup.Ct. R. 13(1) (stating “a petition for a writ of certiorari to review a

judgment in any case ... is timely when it is filed with the Clerk of this Court

within 90 days after entry of the judgment”). As such, Appellant needed to

file his PCRA petition by September 8, 2014. As Appellant filed the instant

petition on January 27, 2016, this petition is facially untimely.

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       Moreover, our review of Appellant’s petition reveals that none of the

PCRA timeliness exceptions are applicable in this case.      Appellant has not

alleged nor proven that (1) the delay in raising his current claims was caused

by interference by governmental officials, (2) the claims in his PCRA petition

were unknown to him or could not have been ascertained by the exercise of

due diligence or (3) his claims consist of recently recognized constitutional

rights. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

       Therefore, as Appellant’s PCRA petition is untimely, the PCRA court had

no jurisdiction to consider it. Commonwealth v. Hutchins, 760 A.2d 50, 55

(Pa.Super. 2000). Even though the PCRA court denied Appellant’s petition on

grounds other than untimeliness, “this Court may affirm the decision of the

PCRA Court if it is correct on any basis.” Id (citations omitted).1

       Order affirmed. Jurisdiction relinquished.




____________________________________________


1 We note that Appellant has not asserted any deficiency in counsel’s
Turner/Finley letter with respect to counsel’s failure to recognize the
untimeliness of this petition. In Commonwealth v. Pitts, 603 Pa. 1, 9, 981
A.2d 875, 880 (2009), our Supreme Court held that it is improper for an
appellate court to sua sponte address the adequacy of a no-merit letter filed
before the PCRA court.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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