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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
WILFORD E. SCALES,                         :
                                           :
                         Appellant         :     No. 62 MDA 2016

                 Appeal from the PCRA Order December 7, 20151
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No.: CP-22-MD-0001720-1985

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                        FILED NOVEMBER 23, 2016

        Appellant, Wilford E. Scales, appeals from the Order entered on

December 7, 2015, in the Court of Common Pleas of Dauphin County

dismissing his second Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm on the

basis that Appellant’s PCRA Petition is untimely and that this Court lacks

jurisdiction to review the Petition.




*
    Retired Senior Judge assigned to the Superior Court.
1
   Appellant purports to appeal from the PCRA Order dated December 4,
2015. The docket entries show that the trial court entered the Order on
December 7, 2015, although December 4 is handwritten on the original
Order. The time stamp by the Clerk of Courts confirms that the trial court
filed this Order on December 7, 2015. We have changed the caption
accordingly.
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      A detailed recitation of the facts is not necessary to our disposition. In

1985, Appellant pleaded guilty to Rape, Aggravated Assault, and Burglary,

and nolo contendere to Involuntary Deviate Sexual Intercourse.               On

December 30, 1986, the court sentenced Appellant to an aggregate term of

22 to 44 years’ imprisonment.2 Appellant filed a direct appeal to this Court,

which we quashed on July 13, 1987. Appellant did not seek further review.

His sentence, thus, became final on August 12, 1987.         See 42 Pa.C.S. §

9545(b)(3); Pa.R.A.P. 1113(a).

      Appellant filed his first PCRA Petition in 1992, which the PCRA court

later dismissed. Appellant filed the instant PCRA Petition, his second, on July

13, 2015.   After providing notice pursuant to Pa.R.Crim.P. 907, the PCRA

court dismissed Appellant’s Petition as untimely on December 7, 2015.

Appellant filed a Notice of Appeal on January 7, 2016.3

      Appellant presents two issues for our review:

      1. Whether the court erred by denying [Appellant’s] PCRA
      petition as untimely. And prove by a preponderance of the
      evidence any of the enumerated exceptions to the one year filing
      requirement.


2
  In 1986, this Court vacated the original Judgment of Sentence because the
trial court abused its discretion by refusing to order a Pre-Sentence
Investigation.   The December 1986 sentence occurred on remand for
resentencing.
3
  Although the PCRA court dismissed Appellant’s Petition on December 7,
2015, the trial court did not deliver the Order until the next day on
December 8, 2015. Accordingly, we conclude Appellant timely filed his
Notice of Appeal. See Pa.R.A.P. 108(a)(1).



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      2. Appellate counsel assigned to this matter refusing to afford
      petitioner “competence[,”] in that Counselor showed a prejudice
      toward his client.

Appellant’s Brief at 4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.      Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014).   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 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 v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010).




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      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

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

      (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 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) (reviewing specific facts that demonstrated the

claim had been timely raised within 60-day timeframe).

      Rather than invoking a timeliness exception, Appellant summarily

avers that “claims challenging the legality of a sentence [] can never be

waived…. Trial courts never relinquish their jurisdiction to correct an illegal


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sentence.” Appellant’s Brief at 7. Appellant also claims that his sentence is

not final because the trial court failed to produce or file a formal “Sentencing

Order.” Appellant’s Brief at 5, 8.

      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).            However, a legality of

sentencing issue must be raised in a timely filed PCRA Petition.        See 42

Pa.C.S. § 9545(b)(1); 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.”). Appellant must present an illegal sentencing claim in

a timely PCRA Petition over which we have jurisdiction. See Fahy, supra at

223; Commonwealth v. Miller, 102 A.3d 988, 995-96 (Pa. Super. 2014)

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

minimum sentence when presented in an untimely PCRA Petition).

      Here, Appellant’s Judgment of Sentence became final on August 12,

1987, upon expiration of the time to file a Petition for Allowance of Appeal

with the Pennsylvania Supreme Court.         See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 1113(a).   In order to be timely, Appellant needed to submit his

PCRA Petition by August 12, 1988. 42 Pa.C.S. § 9545(b)(3). Appellant filed

this PCRA Petition on July 13, 2015, more than 26 years after the one-year

deadline.   After concluding that Appellant failed to plead and prove the



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applicability of one of the timeliness exceptions, the PCRA court properly

dismissed Appellant’s PCRA Petition as untimely without a hearing.

      The PCRA court’s dismissal is supported by the evidence of record and

free of legal error. After a careful review of the parties’ arguments and the

record, we affirm.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




4
  We do not address the merits of Appellant’s substantive issues because we
do not have jurisdiction. Even if we could address them, they would fail.
Appellant’s sentencing issues involving merger should have been raised on
direct appeal. See 42 Pa.C.S. § 9543(a)(2)-(4); 42 Pa.C.S. § 9544(b).
With respect to Appellant’s Sentencing Order issue challenging the court’s
failure to produce a formal Sentencing Order, we direct Appellant to Joseph
v. Glunt, 96 A.3d 365, 372 (Pa. Super. 2014) (holding that the fact that the
Department of Corrections did not possess sentencing order did not entitle
prisoner to habeas relief).



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