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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
DEREYK L. MORRIS,                        :           No. 79 EDA 2016
                                         :
                         Appellant       :


                Appeal from the PCRA Order, December 16, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1103311-1995


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED October 6, 2016.

        Dereyk L. Morris appeals pro se from the order of December 16,

2015, issued by the Court of Common Pleas of Philadelphia County that

dismissed his serial PCRA1 petition without a hearing.

        On February 25, 1997, appellant entered a negotiated plea and was

consecutively sentenced to 10 to 20 years’ imprisonment for third-degree

murder, 10 to 20 years’ imprisonment for robbery, and 5 to 10 years for

criminal conspiracy for      an aggregate    sentence    of 25   to   50   years’

imprisonment.2     The sentences were to be served concurrently with a 17-



* Former Justice specially assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 3701(a)(1), and 18 Pa.C.S.A.
§ 903(a), respectively.
J. S67010/16


year federal sentence for carjacking3 that appellant was serving at the time.

Appellant did not file a direct appeal.

      On December 14, 2009, appellant filed a PCRA petition that challenged

his guilty plea on the basis that he did not want to plead guilty to robbery

but did so because his counsel advised that he would get a lesser sentence.

The PCRA court dismissed the petition as untimely.           On July 13, 2011,

appellant filed a second PCRA petition and claimed that trial counsel was

ineffective for failure to examine the file. In an amended PCRA petition filed

on November 18, 2011, appellant claimed that the common pleas court

lacked subject matter jurisdiction.       On December 17, 2012, appellant filed

an affidavit in which he claimed to have newly discovered evidence and also

leveled allegations of ineffective assistance of counsel.    On May 14, 2013,

appellant filed a motion to correct an illegal sentence and alleged that his

murder and robbery convictions should have merged for sentencing

purposes.   The PCRA court dismissed this PCRA petition as untimely on

October 6, 2014. The PCRA court also ruled that it lacked jurisdiction to rule

on the motion to correct an illegal sentence which was treated as an

untimely PCRA petition.

      On August 27, 2015, appellant filed the current PCRA petition which

was entitled “Motion to Correct Illegal Sentence-Merger Issues”4 in which he


3
 18 U.S.C.A. § 2119.
4
  The legality of a sentence is subject to review within the PCRA.
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).


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argued that the sentence he received was illegal because of the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution

and because he should not have been sentenced separately for offenses

which merged.

     On November 6, 2015, the PCRA court issued a dismissal notice

pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response in which he

asserted that his petition was mailed on August 27, 2015, but it was not

marked “received” by the PCRA unit until October 5, 2015. The PCRA court

corrected the date of filing.    On December 16, 2015, the PCRA court

dismissed the petition as untimely.

     Appellant raises the following issues for this court’s review:

           1.)   Did [the PCRA court] error [sic] by dismissing
                 [appellant’s] petition as untimely?

                 A.)   Is [appellant’s] sentence illegal
                       where the court failed to merge for
                       sentencing purposes?

                 B.)   Does [appellant’s] claim on Double
                       Jeopardy have arguable merit?

                 C.)   Does [appellant’s] claim prove
                       [and]    meet    requirements      to
                       establish counsel’s ineffectiveness?

                 D.)   Is [appellant] eligible for time
                       credit pursuant to 42 Pa.C.S.[A.]
                       [§] 9760?

                 E.)   Does [appellant] have a right to be
                       appointed counsel?




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                       F.)   Did [appellant] pass [and] meet
                             timeliness requirements pursuant
                             to 42 Pa.C.S.[A.] [§] 9545(b)(1)?

Appellant’s brief at 4.

      In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the record of the PCRA court’s hearing,

viewed    in     the     light   most   favorable   to   the   prevailing   party.”

Commonwealth v. Sam, 952 A.2d 565, 573 (Pa. 2008) (internal quotation

omitted). Because most PCRA appeals involve questions of fact and law, we

employ a mixed standard of review.          Commonwealth v. Pitts, 981 A.2d

875, 878 (Pa. 2009).         We defer to the PCRA court’s factual findings and

credibility determinations supported by the record.            Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).                In contrast, we

review the PCRA court’s legal conclusions de novo. Id.

      “When reviewing the grant or denial of post-conviction relief, the

appellate court is limited to determining whether the lower court’s findings

are supported by the record and its order is otherwise free of legal error.

We grant great deference to findings of the PCRA court.” Commonwealth

v. Stark, 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted).

               Pennsylvania law makes clear no court has
               jurisdiction to hear an untimely PCRA petition.
               Commonwealth v. Robinson, 575 Pa. 500, 508,
               837 A.2d 1157, 1161 (2003). The most recent
               amendments to the PCRA, effective January 16,
               1996, provide a PCRA petition, including a second or
               subsequent petition, shall be filed within one year of
               the date the underlying judgment becomes final.


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            42 Pa.C.S.A. § 9545(b)(1); Commonwealth v.
            Bretz, 830 A.2d 1273, 1275 (Pa.Super. 2003);
            Commonwealth v. Vega, 754 A.2d 714, 717
            (Pa.Super. 2000). A judgment is deemed 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.A. § 9545(b)(3).

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

      Subsequent PCRA petitions beyond a petitioner’s first petition are

subject to the following standard:

            A second or subsequent petition for post-conviction
            relief will not be entertained unless a strong
            prima facie showing is offered to demonstrate that
            a miscarriage of justice may have occurred.
            Commonwealth v. Allen, 557 Pa. 135, 141, 732
            A.2d 582, 586 (1999). A prima facie showing of
            entitlement to relief is made only by demonstrating
            either that the proceedings which resulted in
            conviction were so unfair that a miscarriage of
            justice occurred which no civilized society could
            tolerate, or the defendant’s innocence of the crimes
            for which he was charged. Allen, at 142, 732 A.2d
            at 586. Our standard of review for an order denying
            post-conviction relief is limited to whether the trial
            court’s determination is supported by evidence of
            record and whether it is free of legal error.
            Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
            849, 856 (1998).

            A PCRA petition, including a second or subsequent
            petition, must be filed within one year of the date
            that judgment of sentence becomes final. 42 Pa.C.S.
            § 9545(b)(1).     A judgment becomes final for
            purposes of the PCRA “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.


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           § 9545(b)(3). PCRA time limits are jurisdictional in
           nature, implicating a court’s very power to
           adjudicate a controversy. Commonwealth v. Fahy,
           558 Pa. 313, 737 A.2d 214 (1999). Accordingly, the
           “period for filing a PCRA petition is not subject to the
           doctrine of equitable tolling,” instead, the time for
           filing a PCRA petition can be extended only if the
           PCRA permits it to be extended, i.e., by operation of
           one of the statutorily enumerated exceptions to the
           PCRA time-bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,

135 S.Ct. 707 (2014).

           The three statutory exceptions to the timeliness
           provisions in the PCRA allow for very limited
           circumstances under which the late filing of a
           petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
           To invoke an exception, a petition must allege and
           prove:

           (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.



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            42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). “As such, when a
            PCRA petition is not filed within one year of the
            expiration of direct review, or not eligible for one of
            the three limited exceptions, or entitled to one of the
            exceptions, but not filed within 60 days of the date
            that the claim could have been first brought, the trial
            court has no power to address the substantive merits
            of a petitioner’s PCRA claims.” Commonwealth v.
            Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783
            (2000); 42 Pa.C.S.A. § 9545(b)(2).

Monaco, 996 A.2d at 1079-1080.

      Here, appellant’s conviction became final on March 27, 1997, when his

ability to file a direct appeal ended. In order to timely file a PCRA petition,

appellant had to file the petition within one year of March 27, 1997.      The

current petition was not filed until August 27, 2015, which was clearly

untimely.   In order for the PCRA court to properly consider the current

petition, appellant must establish that the petition meets one of the three

exceptions to the one-year requirement.

      Appellant argues that the PCRA court is the government official who

has interfered with the presentation of his claim because it has ruled that

the motion to correct an illegal sentence must be treated as a PCRA petition

and was untimely.    As the PCRA court states, the Pennsylvania Supreme

Court has held that “[a]lthough 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.” Fahy, 737 A.2d at 223. Appellant cannot

claim governmental interference when a common pleas court judge correctly

applies the law regarding a timely petition.


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     Appellant also asserts that he did not become aware that the PCRA

court could correct an unlawful sentence until March 15, 2013, and he filed

his motion to correct an illegal sentence on May 14, 2013.       The current

petition was not filed until 2015, so this assertion is irrelevant. The PCRA

court did not err when it dismissed the petition as untimely. 5     Besides,

whether his sentence was illegal is not an “after-discovered fact” that would

satisfy an exception to the one-year time bar.

     Order affirmed.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 10/6/2016




5
  Because of the disposition of the timeliness issue, this court need not
address appellant’s remaining issues.


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