J-S35021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

ANTHONY EDWARDS

                          Appellant                  No. 2553 EDA 2014


                  Appeal from the PCRA Order August 12, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0902511-1999


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED JULY 22, 2015

      Appellant, Anthony Edwards, appeals from an August 12, 2014 order

entered in the Criminal Division of the Court of Common Pleas of

Philadelphia County that denied his third petition filed pursuant to the

Post-Conviction Collateral Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Since Appellant’s petition was untimely and he failed to plead and prove an

exception to the PCRA’s one-year time-bar, the PCRA court lacked

jurisdiction to entertain his claims. Accordingly, we affirm.

      The trial court summarized the relevant historical and procedural facts

as follows:

      [Appellant] was found guilty after a jury trial of third-degree
      murder, carrying a firearm without a license, and possession of
      an instrument of crime on June 2, 2000, before the [Court of
      Common Pleas of Philadelphia County.] On the same day,
      [Appellant] was sentenced by [the court] to serve a life sentence
      because [he] had previously been convicted of second degree

*Retired Senior Judge assigned to the Superior Court.
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     murder. See 42 Pa.C.S.[A.] § 9715. After [Appellant] filed a
     timely appeal, [this Court] affirmed the judgment of sentence on
     June 22, 2001. The Supreme Court denied [Appellant’s petition
     for allowance of appeal] on December 6, 2001.

     [Appellant] filed his first pro se post[-]conviction relief petition
     on April 22, 2002. Thereafter, counsel was appointed and filed a
     “no merit” letter pursuant to [Commonwealth v. Turner, 544
     A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d
     213 (Pa. Super. 1988)]. The petition was dismissed by the court
     on October 9, 2003 [and Appellant] did not file an appeal from
     the order denying his PCRA petition.

     [Appellant] filed his second post[-]conviction petition on March
     5, 2009[] and the petition was dismissed as untimely on
     November 5, 2012. After filing a timely notice of appeal, [this
     Court] dismissed [Appellant’s] appeal on March 13, 2013[] for
     failure to file a brief.

     [Appellant] filed his current post[-]conviction petition[, his
     third,] on August 12, 2013[.]         [On November 21, 2013,
     Appellant filed an amended petition alleging that he received an
     illegal sentence because the Department of Corrections did not
     possess a written judgment of sentence. On March 25, 2014,
     Appellant amended his petition to assert that the imposition of a
     life sentence under 42 Pa.C.S.[A.] § 9715 for his second murder
     conviction violated Alleyne v. United States, 133 S.Ct. (2013).
     On April 21, 2014, the PCRA court issued notice pursuant to
     Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition as
     untimely. On May 19, 2014, Appellant filed a motion to amend
     his petition and, on May 19, 2014, he supplemented his filing by
     asserting that all three exceptions to the PCRA’s one-year time-
     bar applied. In particular, Appellant noted his recent discovery
     of the Alleyne decision and the absence of a written sentencing
     order.     On August 12, 2014, the PCRA court dismissed
     Appellant’s petition as untimely. On August 14, 2014, Appellant
     again supplemented his petition by asserting that Alleyne
     applied retroactively. This appeal followed.]

Trial Court Opinion, 12/12/14, at 1-2.

     “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

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record and free of legal error.”          Commonwealth v. Feliciano, 69 A.3d

1270, 1274-1275 (Pa. Super. 2013) (citation omitted). “It is an appellant's

burden to persuade this Court that the PCRA court erred and that relief is

due.” Id. “This Court treats the findings of the PCRA court with deference if

the record supports those findings.”           Id.   “As the timeliness of a PCRA

petition is a question of law, our standard of review is de novo and our scope

of review is plenary.”       Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa. Super. 2014) (citation omitted).

       In this case, the PCRA court dismissed Appellant’s petition on grounds

that it was untimely and because Appellant failed to plead and prove the

application of an exception to the PCRA’s timeliness requirement.             We

therefore confine our discussion to whether these conclusions were legally

correct and supported by the record.1

       The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.        This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

____________________________________________


1
  Appellant’s brief on appeal challenges the constitutionality of the PCRA’s
jurisdictional time-bar. This contention is unreviewable since it was raised
for the first time on appeal. See Pa.R.A.P. 302(a). It is also meritless. See
Commonwealth v. Sanders, 743 A.2d 970, 973 (Pa. Super. 1999) (1995
PCRA amendments did not fall outside scope of designated matter of
legislature's special session and, therefore, did not violate constitutional
prohibition against legislation on subjects outside parameters of special
session where governor's proclamation sought to toughen criminal laws and
resulting legislative process involved revising post-conviction relief statutes).



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date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).             Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we are

able to consider any of the underlying claims. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e Court would] consider the issue
        sua sponte, as it is a threshold question implicating [its]
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     Since the time-bar implicates the subject matter jurisdiction of our

courts, “courts are without jurisdiction to offer any form of relief . . .

[b]eyond th[e jurisdictional] time-period.” Commonwealth v. Jackson, 30

A.3d 516, 523 (Pa. Super. 2011). This proscription extends even to claims

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challenging the legality of a sentence. Id. In Jackson, we held that, since

the “[PCRA] petition was patently untimely, [] the PCRA court did not have

jurisdiction under [42 Pa.C.S.A. §] 9545 to consider [the petitioner’s illegal

sentence] claim.” Jackson, 30 A.3d at 521-522. Once the PCRA’s statutory

deadline has passed, “section 9545 . . . acts to divest a court of [subject

matter] jurisdiction” over the claims. Id. at 523.

      In the present case, a jury convicted Appellant on June 2, 2000 of

third-degree murder, carrying a firearm without a license, and possession of

an instrument of crime and, on the same day, the trial court sentenced

Appellant to a life sentence.      This Court affirmed Appellant’s judgment of

sentence on June 22, 2001.            Thereafter, our Supreme Court denied

Appellant’s petition for allowance of appeal on December 6, 2001.           Since

Appellant did not seek review by the United States Supreme Court, his

judgment of sentence became final on March 6, 2002.                See 42 Pa.C.S.

§ 9545(b)(3) (judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review); U.S. Sup.

Ct. Rule 13 (appellant has 90 days to file a petition for certiorari in the

United States Supreme Court after the Pennsylvania Supreme Court issues a

decision).    As Appellant did not file his current petition until August 13,

2013, his petition is manifestly untimely and the burden thus fell upon him

to plead and prove that one of the enumerated exceptions to the one-year

time-bar     applied   to   his   case.     See   42   Pa.C.S.A.    § 9545(b)(1);


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Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead and prove all required elements

of the relied-upon exception).

      The statutory exceptions to the PCRA’s one-year time-bar are as

follows:

           (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.A. § 9545(b).

      Further, as our Supreme Court held, “the 60-day rule requires a

petitioner to plead and prove that the information on which he relies

could not have been obtained earlier, despite the exercise of due diligence.”


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Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (emphasis

added); Commonwealth v. Williams, 105 A.3d 1234, 1239 (Pa. 2014)

(same).

       The record supports the PCRA court’s conclusion that Appellant did not

properly invoke an exception to the PCRA court’s timeliness requirement.

Within his August 13, 2013 petition, Appellant did not explicitly invoke any

of the statutory exceptions to the PCRA’s one-year time-bar.               Nor did

Appellant assert that he filed his petition within 60 days of the date his

claims first could have been presented. On a supplemental submission form,

filed on May 19, 2014 after the PCRA court issued its Rule 907 notice,

Appellant checked several boxes listing all three exceptions to the PCRA’s

jurisdictional time-bar. However, Appellant’s May 19, 2014 filing offered no

factual support for any alleged interference by government officials, any

newly-discovered evidence that was unknowable through due diligence, or

any retroactive constitutional right. It was not until August 14, 2014 (after

the PCRA issued its order dismissing the instant petition) that Appellant

alleged for the first time that Alleyne applied retroactively. Since this Court

has previously held that Alleyne did not create a new constitutional right

that   applies   retroactively   to   claims   pending   on   collateral   review,

Commonwealth v. Miller, 102 A.3d 988, 994 (Pa. Super. 2014),

Appellant’s contention would have been unavailing even if it had been raised

in a timely fashion. Because Appellant failed to plead and prove that one of

the enumerated exceptions to the time-bar applied to his case, the PCRA

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court did not have subject matter jurisdiction over Appellant’s third PCRA

petition.   Hence, the court’s August 12, 2014 order dismissing Appellant’s

petition for collateral relief was legally sound and supported by the record.2

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2015




____________________________________________


2
   Appellant’s petition alleged in the alternative that the Department of
Corrections lacked legal authority to continue to detain Appellant because it
did not possess a sentencing order in this case. In Joseph v. Glunt, 96
A.3d 365 (Pa. Super. 2014), this Court held that an identical claim should be
treated as a petition for a writ of habeas corpus instead of a petition under
the PCRA. Id. at 369. We further held, however, that even when the
Department lacks possession of a written sentencing order, it has continuing
authority to detain a prisoner where a criminal docket provided by trial court
and a transcript of the sentencing hearing confirm the imposition, and
legitimacy, of the prisoner's sentence. Id. at 372. Our review of the record
in this case reveals the presence of these materials. Hence, Appellant’s
alternate claim merits no relief.



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