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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
DAJUAN SAUNDERS,                          :         No. 1104 MDA 2015
                                          :
                           Appellant      :


                   Appeal from the PCRA Order, May 26, 2015,
              in the Court of Common Pleas of Lackawanna County
                Criminal Division at No. CP-35-CR-0001456-2011


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 15, 2016

        Dajuan Saunders appeals, pro se, from the May 26, 2015 order

dismissing his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        The PCRA court set forth the following procedural history:

                   On October 28, 2011, [appellant] pled guilty to
             one count of driving under the influence of
             alcohol,[1] and in exchange the other charge pending
             against [appellant] was nolle prossed.         These
             charges arose on November 20, 2010 when the
             police conducted a traffic stop and found that
             [appellant] was driving under the influence of
             alcohol. Also on October 28, 2011, [appellant] was
             sentenced to one to five years. [Appellant] served
             the court with a pro se motion for reconsideration of
             sentence which was denied on November 3, 2011.

* Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S.A. § 3802.
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            [Appellant] was represented by David Cherundolo,
            Esq.

                  On January 5, 2012, [appellant] filed a Petition
            for Post Conviction Collateral Relief. Kurt Lynott,
            Esq. was appointed to represent [appellant]. On
            November 6, 2012, Mr. Lynott filed a Motion to
            Withdraw as Counsel Pursuant to a Turner-Finley
            Letter.   On January 15, 2013, his motion was
            granted. Also on January 15, 2013, this court issued
            a Notice of Intent to Dismiss and on February 14,
            2013, dismissed the petition.

                  On August 14, 2013, [appellant] filed his
            second PCRA petition. On October 29, 2013, this
            court issued a Notice of Intent to Dismiss and on
            December 12, 2013, dismissed the petition.

                  On February 19, 2015, [appellant] filed his
            third PCRA petition. On April 14, 2015, this court
            issued a Notice of Intent to Dismiss and on May 26,
            2015, dismissed the petition.

                  On June 25, 2015, [appellant] filed a Notice of
            Appeal and a concise statement of the matters
            complained of on appeal.       The reasons for the
            dismissal of [appellant’s] PCRA petition can be found
            in this court’s April 14, 2015 Memorandum and
            Notice of Intent to Dismiss.

Trial court opinion, 8/20/15 at 1-2.

      Appellant raises the following issues for our review:

            A.    WHETHER THE P.C.R.A. COURT ERRED IN
                  FINDING THAT APPELLANT’S P.C.R.A. WAS
                  UNTIMELY FILED PURSUANT TO 42 PA. C.S.A.
                  § [9545](b)(1)(i)?

            B.    WHETHER THE P.C.R.A. COURT ERRED IN
                  FINDING THAT APPELLANT’S P.C.R.A. WAS
                  UNTIMELY FILED PURSUANT TO 42 PA. C.S.A.
                  § [9545](b)(1)(ii)?



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            C.     WHETHER THE P.C.R.A COURT DENIED
                   APPELLANT THE RIGHT TO RAISE HIS TIMELY
                   FILED P.C.R.A[.] ON NOT HAVING A DRUG
                   AND ALCOHOL EVALUATION BY REFUSING TO
                   ANSWER THE PETITION AND ENTER AN ORDER
                   PURSUANT TO PA. R. CRIM. P. 907(4)?

            D.     WHETHER THE PLEA COURT HAD SUBJECT
                   MATER [SIC] JURISDICTION TO ACCEPT
                   APPELLANT’S GUILTY PLEA?

Appellant’s brief at 4.

      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


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           of time for seeking the review.”            42 Pa.C.S.
           § 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).

      Here, the trial court sentenced appellant on October 28, 2011.

Appellant failed to file a direct appeal to this court, and consequently,

appellant’s judgment of sentence became final 30 days after imposition of

sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759,

763 (Pa.Super. 2013).     Therefore, appellant’s petition, filed February 19,

2015, is facially untimely. As a result, the PCRA court lacked jurisdiction to

review appellant’s petition, unless appellant alleged and proved one of the

statutory exceptions to the time bar, as set forth in 42 Pa.C.S.A.

§ 9545(b)(1).

      Those three narrow exceptions to the one-year time bar are:       when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the



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United States Supreme Court has recognized a new constitutional right and

made     that    right   retroactive.     42    Pa.C.S.A.   §    9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Additionally, a petitioner must show, among other things, that the

claims of error have not been previously litigated. 42 Pa.C.S.A. § 9543(a);

Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). An issue has

been previously litigated if “it has been raised and decided in a proceeding

collaterally    attacking   the   conviction   or   sentence.”     42    Pa.C.S.A.

§ 9544(a)(3).

       Here, appellant attempts to circumvent the PCRA time bar by

complaining that the newly discovered fact and government interference

exceptions apply under §§ 9545(b)(i) & (ii). Specifically, he contends that

the government interfered with his receipt of the criminal complaint filed

against him before his preliminary hearing and that its contents constitute

new facts not known to him prior to his pleading guilty and prior to the filing

of his previous PCRA petitions. He further complains that because he did not

receive the criminal complaint, the trial court lacked jurisdiction over him

when he entered his guilty plea. (Appellant’s brief in passim.)



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      Contrary to appellant’s assertions, the record reflects that appellant

raised the issue that he did not receive a copy of the criminal complaint filed

against him in his first PCRA petition filed on January 5, 2012.       (Docket

#14.) The record further reflects that the trial court addressed that claim in

its Memorandum and Notice of Intent to Dismiss. (Docket #23.) The trial

court then dismissed appellant’s petition. (Docket #26.) Appellant failed to

seek review by this court.         Therefore, this claim has been previously

litigated, and we will not address it further.

      Appellant finally complains that his sentence is illegal because he was

required to undergo a drug and alcohol evaluation before sentencing.

(Appellant’s brief at 7, 19-23).

      Challenges to the      legality of the sentence are never waived.

Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super 2005).                 This

means that a court may entertain a challenge to the legality of the sentence

so long as the court has jurisdiction to hear the claim. In the PCRA context,

jurisdiction is tied to the filing of a timely PCRA petition. Id.

      Here, although appellant asserts that his sentence is illegal because he

was required to undergo a drug and alcohol evaluation before sentencing, he

fails to advance any argument as to how his claim comes within any

exception to the PCRA time bar. Stated differently, appellant has failed to

bear his burden of pleading and proving the applicability of any exception.




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      Having determined that appellant’s petition, his third, is manifestly

untimely and that no exception to the PCRA’s one-year jurisdictional time

bar applies, we will affirm the PCRA court’s order dismissing the petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/15/2016




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