J-S74014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

RALPH JOSEPH SUNY

                            Appellant                    No. 1215 EDA 2016


                  Appeal from the PCRA Order March 29, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006903-2003
                            CP-23-CR-0006906-2003


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

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

        Appellant appeals pro se from the order entered in the Court of

Common        Pleas    of   Delaware      County   dismissing   his   “Motion   for

Correction/Modification of Sentence,” which the lower court treated as a

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

Pa.C.S.A. §§ 9541-9546. We affirm.

        The relevant facts and procedural history are as follows: Following a

jury trial, Appellant was convicted of two counts of burglary, three counts of

conspiracy to commit burglary, and driving while under the influence of



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*
    Former Justice specially assigned to the Superior Court.
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alcohol.1   The trial court sentenced Appellant to an aggregate of thirteen

years and three months to twenty-seven years in prison. Appellant filed a

timely, direct appeal to this Court, and on November 6, 2006, we affirmed.

On July 6, 2007, the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal; Appellant did not file a writ of certiorari with the

United States Supreme Court.

       On October 29, 2007, Appellant filed his first, timely PCRA petition,

and counsel was appointed to represent him. Counsel sought to withdraw

pursuant to Turner/Finley,2 and after permitting counsel to withdraw, the

PCRA court dismissed Appellant’s first PCRA petition on October 6, 2008.

This Court affirmed the dismissal of the PCRA petition, and our Supreme

Court denied Appellant’s petition for allowance of appeal.

       On May 19, 2011, Appellant filed a second PCRA petition, which the

PCRA court dismissed on June 22, 2011. This Court affirmed the dismissal

of the PCRA petition, and our Supreme Court denied Appellant’s petition for

allowance of appeal.

       On or about January 12, 2016, Appellant filed a pro se petition entitled

“Motion for Correction/Modification of Sentence” wherein he challenged the

legality of his sentence.       The lower court treated the petition under the
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1
  18 Pa.C.S.A. § 3502, 18 Pa.C.S.A. § 903, and 75 Pa.C.S.A. §
3802(d)(1)(ii), respectively.
2
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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auspices of the PCRA and issued notice of its intent to dismiss the petition.

On March 29, 2016, the PCRA court dismissed Appellant’s petition, and this

timely, pro se appeal followed.

      At the outset, contrary to Appellant’s argument, we conclude the PCRA

court properly treated Appellant’s instant petition, entitled “Motion for

Correction/Modification of Sentence,” under the auspices of the PCRA. The

PCRA provides: “The action established in this subchapter shall be the sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for the same purpose that exist when this

subchapter takes effect[.]” 42 Pa.C.S.A. § 9542. Thus, where a petitioner’s

claim is cognizable under the PCRA, regardless of the title given to the

petition, the Court must analyze the petition under the auspices of the PCRA.

Commonwealth v. Taylor, 65 A.3d 462, 465-55 (Pa.Super. 2013).

      In his instant petition, Appellant contends his sentence is illegal since

(1) he was not convicted of one of the burglary charges for which he was

sentenced, (2) his minimum sentence for conspiracy exceeds one-half of his

maximum sentence for conspiracy, and (3) his aggregate minimum sentence

exceeds one-half of his aggregate maximum sentence. As the PCRA court

correctly observed, challenges to the legality of a petitioner’s judgment of

sentence are cognizable under the PCRA.            See Commonwealth v.

Jackson, 30 A.3d 516 (Pa.Super. 2011).          Accordingly, the PCRA court




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properly treated Appellant’s “Motion for Correction/Modification of Sentence”

as a PCRA petition.

      With regard to petitions filed under the PCRA, as this Court has

observed:

      The filing mandates of the PCRA are jurisdictional in nature and
      are strictly construed. 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 plenary. An untimely petition renders this Court
      without jurisdiction to afford relief.

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must

determine whether Appellant’s January 12, 2016, petition was timely filed

under the PCRA.

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      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 the petitioner must prove:




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      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted).

      In the case before us, this Court affirmed Appellant’s judgment of

sentence on November 6, 2006, and our Supreme Court denied Appellant's

petition for allowance of appeal on July 6, 2007.      Appellant did not seek

further review. Accordingly Appellant's judgment of sentence became final

for PCRA purposes on or about October 4, 2007, upon expiration of the time

to seek certiorari with the United States Supreme Court. See U.S.Sup.Ct.R.

13 (allowing ninety days to file petition for certiorari).   Appellant filed his

current PCRA petition on January 12, 2016, over eight years later. Thus, his

current petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).




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       Nevertheless, Appellant suggests that, since his sentence is illegal for

the reasons set forth in his petition, he is not subject to the PCRA’s

timeliness restrictions.     However, our Supreme Court has held specifically

that, “[a]lthough legality of sentence is always subject to review within the

PCRA, [legality of sentencing] claims must still first satisfy the PCRA’s time

limits or one of the exceptions thereto.” Commonwealth v. Fahy, 558 Pa.

313, 737 A.2d 214, 223 (1999).

       In the case sub judice, Appellant has not invoked any of the applicable

exceptions to the PCRA, and therefore, we agree with the PCRA court that

Appellant’s instant petition was untimely filed.3

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016


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3
  Appellant contends appellate counsel was ineffective in failing to raise his
legality of sentencing issues on direct appeal; however, we note that our
Supreme Court has held “that a claim of ineffective assistance of counsel
does not save an otherwise untimely petition for review on the merits.”
Fahy, 558 Pa. at 331, 737 A.2d at 223.




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