J-S16044-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KENNETH A. CARSON,

                            Appellant                  No. 1624 WDA 2016


               Appeal from the PCRA Order September 30, 2016
                  in the Court of Common Pleas of Erie County
               Criminal Division at No.: CP-25-CR-0002858-2012


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 15, 2017

        Appellant, Kenneth A. Carson, appeals pro se from the September 30,

2016 order dismissing his third petition filed pursuant to the Post Conviction

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

        We take the factual and procedural history in this matter from our

review of the certified record.          On March 5, 2013, Appellant entered a

counseled, nolo contendere plea to possession of a controlled substance and

possession of drug paraphernalia.1 (See N.T. Plea Hearing, 3/05/13, at 10-

11). On May 2, 2013, the trial court imposed a sentence of not less than

eighteen nor more than thirty-six months of incarceration in a state
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16), and 35 P.S. § 780-113(a)(32), respectively.
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correctional institution for possession of a controlled substance, and not less

than six nor more than twelve months for possession of drug paraphernalia.

(See N.T. Sentencing, 5/02/13, at 42-43). The sentences imposed were to

run consecutively to each other and to another sentence for an unrelated

conviction for indecent assault.          (See id.)   Appellant did not file post-

sentence motions or a direct appeal.

       On September 3, 2013, Appellant timely filed his first PCRA petition

pro se.    Court-appointed counsel filed a Turner/Finley2 “no merit” letter

and petition to withdraw. On December 19, 2013, the PCRA court granted

counsel’s petition to withdraw and issued a Rule 907 notice of its intent to

dismiss Appellant’s petition, and dismissed it on February 24, 2014.          See

Pa.R.Crim.P. 907(1).         This Court affirmed on October 8, 2014.         (See

Commonwealth v. Carson, 108 A.3d 108 (Pa. Super. 2014) (unpublished

memorandum)).

       On July 17, 2015, Appellant filed his second PCRA petition pro se. On

October 2, 2015, following proper notice, the PCRA court dismissed

Appellant’s petition as untimely filed. Appellant did not appeal.




____________________________________________


2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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       On September 1, 2016, Appellant filed the instant pro se PCRA

petition, his third.3 The PCRA court gave notice of its intent to dismiss the

petition as untimely on September 6, 2016, and dismissed it on September

30, 2016. This timely appeal followed.4

       Appellant raises the following issues for our review:

       A. Whether Count (1) and Count (3) should have merged for
       sentencing?

       B. Whether Appellant suffered prejudice because of counsel’s
       ineffectiveness in failure to motion fo[r] the dismissal of
       indictment or information on double jeopardy grounds?

       C. Whether the [c]ourt erred when they [sic] did not explain
       [A]ppellant his rights to set up payment plans before sanctions
       were imposed?

(Appellant’s Brief, at 2).

            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.
       The PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

       We begin by addressing the timeless of Appellant’s petition.
____________________________________________


3
  Although Appellant styled his filing as a “judicial supplemental relief from
a[n] illegal sentence/sanctions,” the PCRA court properly treated it as a
PCRA petition. See 42 Pa.C.S.A. § 9542.
4
  Pursuant to the court’s order, Appellant filed a concise statement of errors
complained of on appeal on November 9, 2016. See Pa.R.A.P. 1925(b).
The PCRA court filed an opinion on November 14, 2016. See Pa.R.A.P.
1925(a).



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      Crucial to the determination of any PCRA appeal is the timeliness
      of the underlying petition.      Thus, we must first determine
      whether the instant PCRA petition was timely filed.            The
      timeliness requirement for PCRA petitions is mandatory and
      jurisdictional in nature, and the court may not ignore it in order
      to reach the merits of the petition. The question of whether a
      petition is timely raises a question of law. Where the petitioner
      raises questions of law, our standard of review is de novo and
      our scope of review is plenary.

            A PCRA petition is timely if it is “filed within one year of the
      date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
      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 at the expiration of time for seeking the
      review.” 42 Pa.C.S.A. § 9545(b)(3). . . .

Commonwealth v. Brown, 141 A.3d 491, 499-500 (Pa. Super. 2016)

(case citations and some quotation marks omitted).

      Here, Appellant’s judgment of sentence became final on June 2, 2013,

thirty days after the trial court imposed the judgment of sentence, and

Appellant did not appeal to this Court.       See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 903(a).    Therefore, Appellant had until June 2, 2014, to file a

timely PCRA petition.    See 42 Pa.C.S.A. § 9545(b)(1).       Because Appellant

filed the instant petition on September 1, 2016, it is untimely on its face.

      Section 9545(b) of the PCRA provides three exceptions that allow for

review of an untimely PCRA petition:

            (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;




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            (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.

Id.   When a petition is filed outside the one-year time limit, a petitioner

must plead and prove the applicability of one of the three exceptions to the

PCRA timeliness requirements. See Commonwealth v. Johnston, 42 A.3d

1120, 1126 (Pa. Super. 2012).      Further, a PCRA petition invoking one of

these statutory exceptions must “be filed within [sixty] days of the date the

claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Here, Appellant failed to invoke the applicability of any of the

timeliness exceptions to the PCRA time-bar. (See Appellant’s Brief, at 4-6).

He argues that the petition is timely because a challenge to the legality of a

sentence “may be entertained at any time[.]”          (Id. at 4).    However,

“[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.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (citation

omitted). Because Appellant failed to meet his burden to plead and prove

that one of the timeliness exceptions applies, we conclude that his petition is

untimely and the PCRA court properly found that it lacked jurisdiction to

consider the merits of his claims.         See Johnston, supra at 1126.

Accordingly, we affirm the order of the PCRA court.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2017




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