J-S63017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ERNEST L. MORRISON,

                            Appellant                 No. 175 EDA 2016


                Appeal from the PCRA Order December 11, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003258-2007


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED OCTOBER 21, 2016

       Appellant, Ernest L. Morrison, appeals from the order denying his serial

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       The PCRA court set forth the relevant facts and procedural history of

this matter as follows:

            On July 23, 2007, [Appellant] entered a negotiated [plea
       of] guilty to first degree murder and this court imposed a
       mandatory life sentence. Per the plea agreement, the
       Commonwealth did not seek [the] death penalty, and [Appellant]
       agreed to file no appeals or post-sentence motions.

              Despite this agreement, which was made part of the
       record, [Appellant] filed a pro se PCRA petition, alleging that his
       guilty plea was not made knowingly, voluntarily and intelligently.
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*
    Former Justice specially assigned to the Superior Court.



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       PCRA counsel was appointed and subsequently filed an amended
       petition requesting that [Appellant’s] appeal rights be reinstated
       nunc pro tunc because trial counsel did not file an appeal despite
       being instructed to do so. On January 21, 2010, after reviewing
       the record and pleadings, this court denied relief1.
              1
                Prior to dismissing the PCRA petition, this court
              sent a twenty (20) day Notice of Intent to Dismiss
              pursuant to Pa.R.Crim.P. 907.

             [Appellant] filed an appeal in the Pennsylvania Superior
       Court. On February 11, 2011, the Superior Court affirmed this
       court’s Order denying PCRA relief. Commonwealth v. Morrison,
       No. 435 EDA 2010. [Appellant] did not seek allocator in the
       Pennsylvania Supreme Court.

             [Appellant] filed a second pro se PCRA petition on August
       23, 2012, and an amended petition on October 7, 2015. On
       December 11, 2015, after reviewing the record and pleadings,
       this court dismissed the instant PCRA petition as untimely2. This
       timely pro se appeal follows3.
              2
                Prior to dismissing the PCRA petition, this court
              sent a twenty (20) day Notice of Intent to Dismiss
              pursuant to Pa.R.Crim.P. 907.
              3
                Petitioner did not file his appeal with the County
              Clerk. Rather, he sent a pro se Notice of Appeal and
              a 1925(B) Statement directly to judicial chambers.

PCRA Court Opinion, 1/11/16, at 1-2.1

____________________________________________


1
  While the PCRA court notes in its opinion that Appellant mailed his notice of
appeal directly to the PCRA court’s chamber, the notice of appeal lists the
PCRA court, the District Attorney, and the Clerk of Courts on the certificate
of service. Notice of Appeal, 1/7/16, Certified Record at Docket Entry 19. It
is unclear from the record whether it was the PCRA court that forwarded
Appellant’s notice of appeal to the First Judicial District’s Criminal Appeals
Unit, or whether Appellant mailed a copy directly. Nevertheless, the record
reflects that, ultimately, the notice of appeal was properly and timely filed.
Additionally, we observe that the PCRA court did not direct Appellant to file a
(Footnote Continued Next Page)


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      On appeal, Appellant purports to raise the following issues for this

Court’s consideration, which we reproduce, verbatim, below:

      1) DID DEFENSE COUNSEL INTENTIONALLY PROVIDE DEFICIENT
         PERFORMANCE TO PREJUDICE HIS CLIENTS CASE BY
         SANDBAGGING    THE   CONSTITUTIONAL  REQUIREMENTS
         UNDER THE SIXTH AMENDMENT

      2) IS PETITIONER ENTITLED TO REINSTATEMENT OF HIS
         APPELLATE RIGHTS WHERE DEFAULT WAS DUE TO
         CONSTITUTIONALLY   INEFFECTIVE  ASSISTANCE   OF
         APPOINTED COUNSEL IN VIOLATION OF PETITIONER’S
         RIGHTS UNDER THE PENNSYLVANIA AND UNITED STATES
         CONSTITUTION

Appellant’s Brief at iii.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).                The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.                Rather,
Appellant attached this document to his notice of appeal.



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ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).          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 at the expiration of time for seeking the review.”          42

Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the
____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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)(i), (ii), and (iii).




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PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

        Our review of the record reflects that Appellant was sentenced on July

23, 2007. Appellant did not file a direct appeal, and therefore, his judgment

of sentence became final thirty days later on August 22, 2007.       Pa.R.A.P.

903.     Thus, Appellant had until August 22, 2008, to file a timely PCRA

petition. 42 Pa.C.S. § 9545(b)(3).

        On July 18, 2008, Appellant filed a timely first PCRA petition. Counsel

was appointed, and counsel filed an amended PCRA petition on July 29,

2009.       On January 21, 2010, the PCRA court denied Appellant’s PCRA

petition.    On February 12, 2010, Appellant filed a timely notice of appeal,

and this Court affirmed the PCRA court’s order denying Appellant’s PCRA

petition on February 7, 2011.       Commonwealth v. Morrison, 435 EDA

2010, 24 A.3d 446 (Pa. Super. filed February 7, 2011) (unpublished

memorandum).

        More than nineteen months after this Court affirmed the PCRA court’s

order denying Appellant’s first PCRA petition, Appellant filed his second PCRA

petition on August 23, 2012. As we noted above, however, Appellant had

until August 22, 2008, to file a timely PCRA petition.          42 Pa.C.S. §

9545(b)(3). Thus, Appellant’s instant PCRA petition is patently untimely.




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     As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2).

     In his brief, Appellant argues only that he is eligible for relief because

of his diminished capacity and the cumulative ineffectiveness of prior

counsel. Appellant’s Brief at 1-5. However, Appellant failed to plead, much

less prove, an exception to the PCRA’s timeliness requirement. Accordingly,

Appellant’s PCRA petition was untimely, and no exceptions apply.

     Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.   See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).   Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.             See

Commonwealth       v.   Bennett,     930   A.2d   1264,   1267    (Pa.   2007)




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(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




____________________________________________


3
    We note that in Appellant’s underlying PCRA petition, he claimed that he
was entitled to PCRA relief pursuant to Miller v. Alabama, 132 S.Ct. 2455
(2012). PCRA Petition, 8/23/12, Certified Record at Docket Entry 14. In
Miller, the United States Supreme Court held that mandatory sentences of
life imprisonment without possibility of parole imposed upon individuals who
were juveniles at the time they committed the murder were unconstitutional.
However, we need not delve into this issue any further than to observe that
Appellant abandoned this issue on appeal. Moreover, Miller is inapplicable
because Appellant was thirty-seven years old and not a juvenile on January
13, 2007, when he committed the murder.



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