J-S46039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   Appellee             :
                                        :
                   v.                   :
                                        :
OMAR M. SHELTON,                        :
                                        :
                    Appellant           :     No. 2921 EDA 2015

               Appeal from the PCRA Order August 17, 2015
             in the Court of Common Pleas of Chester County,
           Criminal Division, at No(s): CP-15-CR-0000736-2011
                         CP-15-CR-0002483-2010
                         CP-15-CR-0002491-2010
                         CP-15-CR-0002492-2010
                         CP-15-CR-0002786-2010

BEFORE:    BENDER, P.J.E., OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:         FILED MARCH 01, 2017

     Omar M. Shelton (Appellant) appeals from the order entered on

August 17, 2015, which denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     On October 25, 2011, November 3, 2011, and January 8, 2013,

Appellant entered guilty pleas at all five above-captioned case numbers and

was sentenced to various terms of incarceration, which he is currently

serving. No direct appeals were filed. On October 28, 2013, Appellant filed

pro se a motion to modify sentence nunc pro tunc.       On January 9, 2014,




*Retired Senior Judge assigned to the Superior Court.
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following a hearing, Appellant withdrew his motion.       The court entered an

order to that effect on the same day.1

      On August 8, 2014, Appellant filed the instant PCRA petition and

counsel was appointed. On September 18, 2014, counsel moved to withdraw

his appearance pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). On October 27, 2014, Appellant filed an answer to counsel’s petition

to withdraw. On May 26, 2015, the PCRA court issued its notice of intent to

dismiss. Appellant did not file a response. On August 17, 2015, the PCRA

court dismissed Appellant’s petition as untimely and permitted counsel to

1
 It is clear that the PCRA court erred in not treating this filing as a PCRA
petition.

      Generally, a filing that raises issues with respect to remedies
      offered under the PCRA will be considered a PCRA petition. A
      prayer for relief, however, which does not fall within the
      remedies afforded by the PCRA will not constitute a PCRA
      petition. Thus, the initial question in a collateral filing is whether
      the petitioner has an available remedy under the PCRA.

Commonwealth v. Lutz, 788 A.2d 993, 996 n. 7 (Pa. Super. 2001)
(citations omitted). In his October 28, 2013 motion, Appellant raised
legality-of-sentence   claims  cognizable    under    the     PCRA.       See
Commonwealth v. Hockenberry, 689 A.2d 283, 288 (Pa. Super. 1997)
(untimely motion to modify illegal sentence treated as PCRA petition, since
issues relating to legality of sentence are cognizable under PCRA).
Accordingly, the PCRA court erred in not treating this filing as a timely first
PCRA petition and appointing counsel. However, the remedy for this error is
to appoint counsel for the subsequent PCRA petition, which was done here.
See      e.g.     Commonwealth        v.    Davis,      563      A.2d     932
(Pa. Super. 1989).




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withdraw.   This pro se appeal followed.2 The PCRA court did not order

Appellant to file a statement pursuant to Pa.R.A.P. 1925(b) and none was

filed; however, the court did file a 1925(a) opinion.

      Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

record and free of legal error.    Commonwealth v. Anderson, 995 A.2d

1184, 1189 (Pa. Super. 2010). Under the PCRA, all petitions must be filed

within one year of the date that the petitioner’s judgment of sentence

became final, unless one of three statutory exceptions applies. 42 Pa.C.S.

§ 9545(b)(1); Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006).

For purposes of the PCRA, a judgment of sentence becomes final at the

conclusion of direct review.   42 Pa.C.S. § 9545(b)(3).    “The PCRA’s time

restrictions are jurisdictional in nature.” Chester, 895 A.2d at 522. “Thus,

‘[i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has

2
  Appellant’s notice of appeal was received by the trial court one day after
the September 17, 2015 filing deadline. The envelope in which the notice
was mailed was not date stamped by the post office or the clerk of courts;
however, Appellant dated his notice “September 11, 2015.” Appellant’s
Notice of Appeal. Because Appellant was incarcerated at the time his notice
of appeal was filed, we may assume that Appellant placed it in the hands of
prison authorities on or before September 17, 2015. Thus, we hold that his
notice of appeal is timely-filed under the prisoner mailbox rule. See
Commonwealth v. Patterson, 931 A.2d 710 (Pa. Super. 2007) (holding
that even without a postmark definitively noting the date of mailing, this
Court may find an incarcerated appellant’s filing timely where the date of
receipt indicates that appellant placed the document in the hands of prison
authorities in advance of the applicable filing deadline).




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jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal    authority   to   address   the    substantive   claims.’”   Id.   (quoting

Commonwealth v. Lambert, 884 A.2d 848, 851 (Pa. 2005)).

        Because he did not take a direct appeal from the judgment of sentence

imposed at any of his five docket numbers, Appellant’s judgments of

sentence became final on November 24, 2011 (2786-2010 and 2483-2010)

and February 7, 2013 (736-2011, 2491-2010 and 2492-2010). Accordingly,

Appellant had until November 24, 2012 and February 7, 2014, in order to file

timely PCRA petitions.

        Appellant filed the PCRA petition at issue in this case on August 18,

2014. Because this filing was untimely under any docket number, he had

the burden of pleading and offering to prove one of the following exceptions:

        (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.

42 Pa.C.S. § 9545(b)(1).       Moreover, he was required to show that the

petition was “filed within 60 days of the date the claim could have been




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presented.”   42 Pa.C.S. § 9545(b)(2).      This is true even where, as here,

Appellant’s   petition   presents    a     legality-of-sentence   claim.   See

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“[A]

court may entertain a challenge to the legality of the sentence so long as the

court has jurisdiction to hear the claim. In the PCRA context, jurisdiction is

tied to the filing of a timely PCRA petition. 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.”) (citations omitted).

      Because Appellant has not pled or proven one of the aforementioned

exceptions, we agree with the PCRA court’s conclusion that Appellant’s

August 18, 2014 petition was untimely filed. Finding no error on the part of

the PCRA court, we affirm the court’s order.3

      Order affirmed.




3
   On August 4, 2016, the panel filed a memorandum affirming the PCRA
court’s order.     On August 18, 2016, Appellant filed a motion for
reconsideration claiming, inter alia, that this panel’s August 4 decision
conflicted with that of Appellant’s co-defendant at 2820 EDA 2015. On
September 26, 2016, we granted panel reconsideration and withdrew our
previously filed memorandum. Upon reconsideration, we have determined
that the procedural posture of Appellant’s case is different from that of his
co-defendant because his co-defendant’s second PCRA petition was timely-
filed. Therefore, after reconsideration, we reach the same result.



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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/1/2017




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