J-S08045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RONALD BOOKER

                            Appellant               No. 2818 EDA 2014


               Appeal from the PCRA Order September 11, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0017214-1999


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                      FILED FEBRUARY 03, 2015

        Appellant Ronald Booker appeals pro se from the order entered in the

Montgomery County Court of Common Pleas which dismissed his petition

seeking relief pursuant to the Post Conviction Relief Act (“PCRA”). 1    We

affirm.

        The trial court sets forth most of the relevant facts and procedural

history of this appeal as follows:

          On May 23, 2000, a jury convicted Appellant of robbery,
          theft, criminal conspiracy, recklessly endangering another
          person, terroristic threats, false imprisonment, possessing
          a concealed weapon and firearms not to be carried without
          a license[2] for the July 23, 1999, armed robbery of Buddy
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1
    42 Pa.C.S. §§ 9541-9546.
2
 18 Pa.C.S. §§ 3701(a)(1), 3921(a), 903(a)(1), 2705, 2706, 2903, 907(b),
and 6106(a), respectively.
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          Bear Jewelry store in Merion, Montgomery County. On
          October 23, 2000[,] Appellant was sentenced to an
          aggregate term of 15½ to 49 years’ imprisonment.
          Appellant filed a direct appeal, and on June 15, 2001, the
          Pennsylvania Superior Court affirmed his judgment of
          sentence. Appellant did not file a petition for allowance of
          appeal with the Pennsylvania Supreme Court.

          On November 14, 2002, Appellant filed his first pro se
          PCRA petition, albeit untimely. Counsel was appointed,
          and finding that the petition was untimely and
          substantively meritless, he filed a no-merit letter. This
          [c]ourt provided pre-dismissal notice pursuant to Pa.R.A.P.
          907, and ultimately issued a final order of dismissal,
          dismissing Appellant’s untimely PCRA petition. Appellant
          appealed, and his appeal was denied by the Pennsylvania
          Superior Court on December 4, 2003. On May 18, 2004,
          Appellant’s petition for allowance of appeal was denied by
          the Pennsylvania Supreme Court.

          Appellant filed a second untimely PCRA petition, which was
          also dismissed on March 10, 2010. Appellant did not
          appeal.

          On August 19, 2014, Appellant filed his third PCRA
          petition, at issue in this appeal.

PCRA Court Opinion, filed October 27, 2014, p. 2.

       On August 22, 2014, the PCRA court issued a Rule 907 notice of intent

to dismiss the petition without a hearing. On September 11, 2014, the court

dismissed the petition.3         Appellant timely filed a notice of appeal on

September 26, 2014. On October 1, 2014, the court ordered Appellant to


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3
  Because Appellant objected to the Rule 907 notice on September 17, 2014,
after the court had already dismissed the petition, the court again denied
relief and dismissed the petition on September 22, 2014.



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file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b), and he timely complied on October 20, 2014.

      Appellant raises the following issues for review:

         WHETHER [APPELLANT] WAS ENTITLED TO [PCRA] RELIEF
         AS A RESULT OF PENNSYLVANIA SENTENCE SCHEME
         UNDER 42 PA.C.S. § 9714 AND [BECAUSE] MCMILLIAN
         V. PENNSYLVANIA IS CONTRARY TO ALLEYNE[?]

         WHETHER [APPELLANT] WAS ENTITLED TO [PCRA] RELIEF
         [BECAUSE] THE LEGALITY OF SENTENCE QUESTION [IS]
         NOT WAIVABLE AND MAY BE RAISED SUA SPONTE BY THE
         COURT [AT] ANY TIME[?]

Appellant’s Brief, p. 4.

      Before we address the merits of Appellant’s claims, we must determine

whether his PRCA petition was timely.      The timeliness of a PCRA petition

implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).       “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of the date the underlying
         judgment becomes final. A judgment is deemed final at
         the conclusion of direct review, including discretionary
         review in the Supreme Court of the United States and the

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         Supreme Court of Pennsylvania, or at the expiration of
         time for seeking the review.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

             (i) the failure to raise the claim 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.

42 Pa.C.S. § 9545(b)(1).          Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

       Additionally, a heightened standard applies to a second or subsequent

PCRA    petition   to   avoid   “serial   requests   for   post-conviction   relief.”

Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa.2011).                  A second or

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subsequent PCRA petition “will not be entertained unless a strong prima

facie showing is offered to demonstrate that a miscarriage of justice may

have occurred.”        Commonwealth v. Hawkins, 953 A.2d 1248, 1251

(Pa.2006). Further, in a second or subsequent post-conviction proceeding,

“all issues are waived except those which implicate a defendant’s innocence

or which raise the possibility that the proceedings resulting in conviction

were so unfair that a miscarriage of justice which no civilized society can

tolerate occurred.”       Commonwealth v. Williams, 660 A.2d 614, 618

(Pa.Super.1995).

       Here, Appellant’s judgment of sentence became final on July 16, 2001,

when Appellant’s time for seeking review with our Supreme Court expired.4

See Monaco, supra. Therefore, he had until July 16, 2002 to timely file a

PCRA petition. Appellant filed the instant pro se PCRA petition over twelve

years later, on August 19, 2014. Thus, his PCRA petition is facially untimely,

and we must determine whether Appellant has pled and proved any of the

exceptions to the PCRA time limitation. See 42 Pa.C.S. § 9545(b)(1).

       Appellant’s petition does not claim, plead, or prove any of the

exceptions to the PCRA time limitation. Further, Appellant makes no effort



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4
  This period would have expired on July 15, 2001. However, as July 15,
2001 fell on a Sunday, Appellant had until July 16, 2001 to file a petition for
allowance of appeal to our Supreme Court.



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to explain why he did not bring his claims in a timely manner. The PCRA

court reasoned:

          Appellant    does    not    acknowledge      [his  petition’s]
          untimeliness, and even if this [c]ourt could read his
          pleadings as an attempt to invoke one of the statutory
          exceptions to the time-bar by relying on Alleyne,5 namely
          ‘the right asserted was recognized by the United States
          Supreme Court or the Pennsylvania Supreme Court as a
          constitutional right after the petitioner’s case was decided
          and the right has been upheld to apply retroactively,’ 42
          [Pa.C.S.] §9545(b)(1)(iii), Alleyne is not applicable in this
          case, as Appellant was not sentenced under a mandatory
          minimum statute.

PCRA Court Opinion, pp. 5-6.

        Appellant’s petition is time-barred, and the PCRA court properly denied

it. Accordingly, we affirm.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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5
    Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed. 2d 314 (2013).




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