J-S28004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                              Appellee

                        v.

NORMAN E. GREGORY,

                              Appellant                    No. 722 WDA 2016


                   Appeal from the Order Entered April 21, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0007930-1982
                             CP-02-CR-0007997-1982


BEFORE: OLSON, MOULTON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                         FILED MAY 3, 2017

      Appellant, Norman E. Gregory, appeals pro se from the order entered

on April 21, 2016, which dismissed his serial petition filed pursuant to the

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

      On March 2, 1983, Appellant pleaded nolo contendere to a number of

charges,    including    rape,    robbery,   burglary,   false   imprisonment,   and

terroristic threats.         On February 15, 1984, the trial court sentenced

Appellant to serve an aggregate term of 17 ½ to 50 years in prison for his

convictions.    Appellant did not file a direct appeal from his judgment of

sentence.

      After Appellant’s judgment of sentence became final, Appellant filed

numerous petitions for post-conviction collateral relief – all of which were

dismissed. On December 7, 2015, Appellant filed a “Motion to Attend and


* Retired Senior Judge assigned to the Superior Court.
J-S28004-17



Produce,” wherein Appellant requested that the PCRA court direct the

Commonwealth to produce certain pre-trial documents that were filed in

1982; Appellant also requested that the PCRA court schedule a hearing on

“any disputed issue of material fact.” See Appellant’s Current PCRA Petition,

12/7/15, at 1.   The PCRA court properly construed Appellant’s “Motion to

Attend and Produce” to be a serial petition under the PCRA.             See 42

Pa.C.S.A. § 9542 (the PCRA “is the sole means of obtaining collateral relief

and encompasses all other common law and statutory remedies . . .

including habeas corpus and coram nobis”); Commonwealth v. West, 938

A.2d 1034, 1043 (Pa. 2007) (“[t]he PCRA subsumes all forms of collateral

relief, including habeas corpus, to the extent a remedy is available under

such enactment”). Within Appellant’s serial PCRA petition, Appellant neither

acknowledged that his petition was untimely nor pleaded a statutory

exception to the PCRA’s one-year time-bar. See Appellant’s Current PCRA

Petition, 12/7/15, at 1-3.

      On April 21, 2016, the PCRA court dismissed Appellant’s petition by

declaring that Appellant’s “Argument/Hearing scheduling Praecipe and Order

is denied.” PCRA Court Order, 4/21/16, at 1. On May 5, 2015, Appellant

filed a timely appeal from the PCRA court’s above-described order.        See

Appellant’s Notice of Appeal, 5/5/15, at 1 and Attachment. We now affirm

the dismissal of Appellant’s patently untimely, serial PCRA petition.

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

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

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

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 our
        subject matter jurisdiction and ability to grant the requested
        relief.

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

     In the case at bar, since Appellant did not file a direct appeal from his

judgment of sentence, his judgment of sentence became final at the end of

the day on March 16, 1984, which was 30 days after Appellant was

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sentenced in open court and the time for filing a direct appeal to this Court

expired.     42 Pa.C.S.A. § 9545(b)(3) (“A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States . . . , or at the expiration of time for seeking the

review”); see also Pa.R.A.P. 903(a).           The PCRA explicitly requires that a

petition be filed “within one year of the date the judgment becomes final[.]”

42 Pa.C.S.A. § 9545(b)(1).1         As Appellant did not file his current petition

until December 14, 2015, the current petition is manifestly untimely and the

burden thus fell upon Appellant 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); 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).




____________________________________________


11
     As we have explained to Appellant in a prior memorandum:

           Appellant does not benefit from a grace proviso provided for
           petitioners whose judgments of sentence became final prior
           to the effective date of § 9545. The proviso applies to first
           PCRA petitions that [were] filed by January 16, 1997. See
           Commonwealth v. Alcorn, 703 A.2d 1054, 1057 (Pa.
           Super. 1997). . . .

Commonwealth v. Gregory, 87 A.3d 878 (Pa. Super. 2013) (unpublished
memorandum) at 6 n.5.



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      Appellant did not attempt to plead any exception to the PCRA’s one-

year time-bar. Thus, Appellant’s petition is time-barred and our “courts are

without jurisdiction to offer [Appellant] any form of relief.” Commonwealth

v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the

PCRA court’s order dismissing Appellant’s serial PCRA petition.

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2017




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