J-S86027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JEFFREY SCOTT WATERS

                            Appellant                   No. 620 WDA 2016


                   Appeal from the PCRA Order March 31, 2016
                In the Court of Common Pleas of Crawford County
               Criminal Division at No(s): CP-20-CR-0000042-2014


BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                             FILED MARCH 10, 2017

       Jeffrey Scott Waters appeals, pro se, from the March 31, 2016 order of

the Crawford County Court of Common Pleas dismissing as untimely his

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

§§ 9541-9546. We affirm.

       On August 27, 2014, Waters pled nolo contendere to two counts of

conspiring to obtain oxycodone by using forged prescriptions.1 On October

29, 2014, the trial court sentenced Waters to an aggregate term of 54 to

108 months’ incarceration and ordered him to pay costs of prosecution and

fines totaling $1,000.00.       Waters did not file a post-sentence motion or a

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 903.
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direct appeal, so his judgment of sentence became final on December 1,

2014, when the time for seeking appeal in this Court expired.

      Waters filed his first PCRA petition on April 6, 2015, which the trial

court dismissed.      Waters did not appeal.          Waters filed the instant PCRA

petition on February 26, 2016.          On March 8, 2016, the trial court filed a

notice of intent to dismiss pursuant to Pa.R.Crim.P. 907(1). Waters timely

objected, and the trial court issued a memorandum and order dismissing his

petition on March 31, 2016. Waters timely filed a notice of appeal.

      Waters’ sole issue on appeal is whether the PCRA court improperly

dismissed his petition, which alleged an imposition of an illegal sentence.

      Before addressing the merits of Waters’ PCRA petition, we must first

determine whether his petition is timely. Under Pennsylvania law, no court

has jurisdiction to hear an untimely PCRA petition.                Commonwealth v.

Monaco,     996       A.2d   1076,      1079        (Pa.Super.     2010);     see    also

Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super. 2007)

(timeliness requirement of the PCRA is “mandatory and jurisdictional in

nature”)   (quoting    Commonwealth            v.    Carr,   768      A.2d   1164,   1167

(Pa.Super. 2001)).      “[A] PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final.” Monaco, 996 A.2d at 1079; see 42 Pa.C.S. § 9545(b)(1).

A   judgment   is   “final   at   the   conclusion      of   direct    review,   including

discretionary review in the Supreme Court of the United States and the




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Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.” 42 Pa.C.S. § 9545(b)(3).

      There are three exceptions to the PCRA’s time bar, establishing the

limited circumstances under which the late filing of a petition will be

excused. Monaco, 996 A.2d at 1079 (citing 42 Pa.C.S. § 9545(b)(1)). For

one of the exceptions to apply, a petitioner must allege and prove one of the

following:

         (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)-(iii).   Further, a petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” Id. § 9545(b)(2).

      Waters’ judgment of sentence became final on December 1, 2014. He

had one year, or until December 1, 2015, to file a timely PCRA petition.

Waters’ second PCRA petition, filed on February 26, 2016, is patently

untimely. On appeal, Waters fails to allege any of the three exceptions to



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the one-year PCRA time bar. Therefore, we conclude that the PCRA court

properly dismissed his second PCRA petition as untimely.2

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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       2
        In Waters’ PCRA petition, he claimed the “new-facts” exception,
arguing that 18 Pa.C.S. § 109 was a “new fact” sufficient to trigger an
exception to the one-year time bar. Section 109 relates to a prosecution
being barred following a former prosecution for the same offense. This
statute became effective June 6, 1973; it cannot constitute a “new fact.”




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