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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


    CALVIN CAPERS

                          Appellant                :   No. 258 EDA 2018

            Appeal from the PCRA Order Entered December 20, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0105741-2005,
                           CP-51-CR-0800361-2004

BEFORE:           LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                              FILED JANUARY 07, 2019

        Calvin Capers appeals from the order dismissing as untimely his petition

for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. He

maintains that he        is   serving an illegal sentence. We affirm.

        Capers pled guilty in March 2005 to two counts of Possession with Intent

to Deliver.' The trial court sentenced Capers to one year in the County

Intermediate Punishment program, followed by two years of reporting

probation.2 He did not file an appeal to this Court. On November 15, 2007,

the trial court found Capers in technical violation of his probation after he

failed to report to the probation department. N.T., Violation of Probation



'   35 P.S.   §   780-113(a)(30).

2The Commonwealth agreed not to seek the mandatory sentence for Capers'
cases. See N.T., Violation of Probation Hearing, 2/11/13, at 4.
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("VOP") Hearing, 2/11/13, at 5. The same day, the trial court revoked Capers'

IP probation and imposed a consecutive sentence of 111/2 to 23 months of

incarceration followed by three years of reporting probation.          Id. at 6. In 2010,
Capers was arrested for multiple crimes from separate dates including persons

not to possess, use, manufacture, control, sell, or transfer firearms.3                 Id.
Capers pled guilty to the firearms charge and the Commonwealth nolle

prossed the remaining charges, and Capers was sentenced on January 31,

2013.    Id. at 6-7.   On February 11, 2013, the original     trial court found Capers

in    direct violation of his probation and sentenced him to five to ten years'

incarceration. Capers did not file     a   post sentence motion and did not appeal

to this Court.

         On August 19, 2016, Capers filed the instant PCRA petition giving rise

to this appeal. In his PCRA petition, Capers claimed "the Commonwealth did

not indicate/charge intentions to seek mandatory sentence within indictment";

"defense counsel allowed [Capers] to plea to charge without knowing penalties

for said offense"; and "courts abuse of discretion in re -sentencing after

violation of IP sentence of 1-2 y[ea]r sentence running concurrently." PCRA

Petition, filed 8/19/16, at 3-4. Regarding the timeliness of his petition, Capers

asserted the time -bar exceptions of unknown facts and             a   newly recognized

constitutional right. See PCRA Petition at 2; see also 42 Pa.C.S.A.                        §

9545(b)(ii),(iii).   His petition also recognized   that he did not file   a   direct appeal


3    18 Pa.C.S.A. § 6105.


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from the sentence the court imposed on February 11, 2013. See PCRA Petition

at 5. However, he asserted that "an illegal sentence can be challenged at any

time." Id. at 8.
        The trial court appointed counsel, who reviewed Capers' petition.

"[A]fter   a   thorough review of the court record," including the transcripts from

sentencing hearing as well as the VOP hearing, PCRA counsel filed         a   Finley4

letter concluding that the petition was untimely, without merit, and failed to

plead or prove at least one of the time -bar exceptions:

               In [Capers'] two cases as captioned above, judgment of
        sentence became final thirty (30) days after February 11, 2013.
        Capers should have filed his PCRA petition by no later than March
        11, 2014. [] Capers took no direct appeal to the appellate courts
        and filed his PCRA petition on August 19, 2016, so it appears that
        the petition was almost 21/2 years too late and clearly untimely.
        Furthermore, [Capers] neither pleads nor proves that any of the
        applicable exceptions as evaluated in 42 Pa.C.S. § 9545(b) are
        applicable.
                                          ** *
              Accordingly, it is this counsel's opinion that [Capers] petition
        for PCRA relief is without merit and based upon baseless
        allegations of unsupported and frivolous allegations and a
        misreading of applicable case law.
Finley Letter, filed 11/16/17, at 1-4 (unpaginated).
        The PCRA court issued notice of its intent to dismiss the petition without

a    hearing, and Capers responded to the notice. See Pa.R.Crim.P. 907. The

trial court dismissed the petition on December 20, 2017, and permitted

appointed counsel to withdraw. This timely appeal followed.




4   Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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         On appeal, Capers asks us to review the following issues:

         I.         Whether the Court abuse[d] its discretion in re -sentencing
                    [Capers] after violation of probation?

         II.        Whether the Court failed to explain, to ensure, and protect
                    [Capers'] Constitutional Rights?

         III.       Whether Post Conviction counsel render[ed] ineffective
                    assistance of counsel?

         IV.        Whether [p]lea counsel render[ed] ineffective assistance of
                    counsel?
Capers' Br. at 4.

         Our standard of review of an order dismissing         a PCRA      petition    is as

follows: "We must determine whether the PCRA court's ruling           is   supported by

the record and free of legal error." Commonwealth v. Presley, 193 A.3d

436, 442 (Pa.Super. 2018) (citation omitted).

        We do not address the merits of Capers' claims because his PCRA

petition       is   untimely. See Commonwealth v. Smith, 194 A.3d 126, 132

(Pa.Super. 2018) ("PCRA's time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of            a   petition"). A

timely        PCRA is one      that has been filed within one year of the date the

judgment of sentence became final. See 42 Pa.C.S.A.              §   9545(b)(1). "[A]
judgment [of sentence] becomes 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 time for seeking




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the review." Commonwealth v. Staton, 184 A.3d 949, 954 (Pa. 2018)

(quoting 42 Pa.C.S.A.       §   9545(b)(3)).
        A   petitioner who files   a PCRA   petition after the one-year deadline must

plead and prove at least one of the three time -bar exceptions. These

exceptions are: (1) the failure to raise the claim previously was due to

governmental interference; (2) the facts of the claim were unknown to the

petitioner and could not have been ascertained by due diligence; or (3)                 a

newly recognized constitutional right that the United States Supreme Court or

Pennsylvania Supreme Court have held to apply retroactively. See 42

Pa.C.S.A.    §   9545(b)(1)(i)-(iii). The petitioner must raise    a   time -bar exception

within 60 days from the date that the petitioner could have first raised the

exception. See 42 Pa.C.S.A.         §   9545(b)(2).
        Here, Capers' judgment of sentence became final on March 13, 2013,

when the 30 days to appeal his sentence to this Court expired. He therefore

had until March 13, 2014, to file a timely PCRA petition. Thus, the instant

petition filed two years after the one year time -bar       is   untimely and therefore

the PCRA court lacked jurisdiction to consider the petition unless one of the

three time -bar exceptions applied. See Commonwealth v. Albrecht, 994

A.2d 1091, 1093 (Pa.Super. 2010).           It was Capers' burden to plead      and prove

that one of the time -bar exceptions applied. See Commonwealth v. Woods,

179 A.3d 37, 43 (Pa.Super. 2017) (petitioner bears burden of pleading and

proving time -bar exception).



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        In his PCRA petition, Capers pled but made no effort to prove at least

one of the time -bar exceptions. As such, we conclude that "the PCRA court's

ruling is supported by the record and free of legal error." Presley, 193 A.3d

at 442. We therefore do not address the merits of Capers' appellate issues

and affirm the order of the PCRA court.5

        Order affirmed.

        Judgment Entered.


              .,




Jseph     Seletyn,
         D.
Prothonotary



Date: 1/7/19




5While Capers abandons the argument on appeal that he can raise an illegal
sentence at any time, we note that this is incorrect. "Although legality of
sentence is always subject to review within the PCRA, claims must still first
satisfy the PCRA's time limits or one of the exceptions thereto."
Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).
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