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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
MELVIN GREEN,                             :         No. 1561 EDA 2018
                                          :
                         Appellant        :


                   Appeal from the PCRA Order, April 19, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0001227-2009


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 16, 2019

        Melvin Green appeals pro se from the April 19, 2018 order entered in

the Court of Common Pleas of Philadelphia County dismissing his 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 November 2, 2008, [appellant] was arrested and
             charged with rape, incest, and other charges related
             to the sexual assault of his biological sister. On
             July 21, 2010, [appellant] entered into a negotiated
             plea on the single charge of sexual assault[1] which
             included a sentence of 4 to 8 years[’] state
             incarceration.   Sentencing was deferred for an
             assessment by the Sexual Offender Assessment
             Board. On December 13, 2010, [appellant] filed a
             motion to withdraw his guilty plea. On January 24,
             2011, the Honorable Thomas Dempsey held a hearing

1   18 Pa.C.S.A. § 3124.1.
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          with regard to [appellant’s] motion to withdraw his
          guilty plea. At this hearing, [appellant] stated that he
          did not want to withdraw his guilty plea and asked the
          court to deny his motion to withdraw the plea (N.T.
          1/24/2011, p. 4-5).        On September 20, 2011,
          [appellant] was sentenced to the negotiated sentence
          of 4 to 8 years[’] state incarceration.

          On October 18, 2011, [appellant] filed a notice of
          appeal to Superior Court. On November 21, 2011,
          [appellant] filed a praecipe to discontinue appeal,
          which was subsequently granted on November 29,
          2011. On September 4, 2012, [appellant] filed his
          first pro se PCRA petition and motion for DNA testing.
          However, on October 15, 2012, [appellant] filed a
          motion to withdraw his request for DNA testing. On
          January 29, 2013, [appellant] filed a motion to
          withdraw his PCRA. As a result, his pro se PCRA
          petition was withdrawn that day.

          On October 27, 2017, [appellant] filed his second
          pro se PCRA petition. In his petition, [appellant]
          argued that trial counsel was ineffective for not
          pursuing a pre-trial motion to prevent the
          Commonwealth’s witness from testifying and for
          inducing [appellant’s] guilty plea. [Appellant] further
          averred that appellate counsel was also ineffective for
          obstructing his right to appeal and that the
          Commonwealth violated his constitutional rights by
          proceeding with a witness with an alleged known
          mental disorder.

          On November 7, 2017, George S. Yacoubian, Jr.,
          Esquire, was appointed as PCRA counsel.            On
          January 12, 2018, Mr. Yacoubian filed a letter
          pursuant to Commonwealth v. Finley, 550 A.2d 213
          ([Pa.Super.] 1988), stating that the issues raised by
          [appellant] in his pro se petition were untimely and
          without merit and that there were no other
          meritorious issues that could be raised in an amended
          petition.  On[] March 20, 2018, this Court sent
          [appellant] a [Pa.R.Crim.P.] 907 Notice, indicating
          that his petition would be dismissed based upon
          Counsel’s Finley letter. [Appellant] filed a reply to


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            the [Rule] 907 Notice on April 3, 2018 repeating the
            same claims asserted in his pro se petition. On
            April 17, 2018, after independent review of
            [appellant’s] pro se petition, PCRA Counsel’s Finley
            letter and [appellant’s] reply to the [Rule] 907 notice,
            this Court dismissed [appellant’s] petition without a
            hearing based upon Counsel’s Finley letter and
            untimeliness. On May 16, 2018, [appellant] appealed
            the dismissal of his PCRA petition to the Superior
            Court.2

PCRA court opinion, 9/5/18 at 1-3.

      Appellant raises the following issues for our review:

            1.    Whether the PCRA court improperly [and]
                  unlawfully dismissed appel[l]ant’s petition as
                  untimely and without merit[?]

            2.    Whether the PCRA court improperly [and]
                  unlawfully addressed the merits of appellant’s
                  petition to this court[?]

            3.    Whether the appellant can establish any one of
                  the prongs of the ineffectiveness test[?]

Appellant’s brief at 2-4 (full capitalization omitted).3

      In order to be timely filed, a PCRA petition, including second and

subsequent petitions, must be filed within one year of when an appellant’s

judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment

of sentence becomes final on the date the direct appeal is discontinued


2  We note that the PCRA court did not order appellant to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
PCRA court did, however, file an opinion.

3 We note that appellant’s brief fails to comply with Pa.R.A.P. 2111 overall;
and specifically, he failed to include a “[s]tatement of questions involved” in
violation of Rule 2111(a)(4).


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voluntarily.   See Commonwealth v. McKeever, 947 A.2d 782, 785

(Pa.Super. 2008), citing Commonwealth v. Conway, 706 A.2d 1243

(Pa.Super. 1997) (judgment of sentence final for PCRA purposes when appeal

is discontinued voluntarily). The Supreme Court of Pennsylvania has held that

the PCRA’s time restriction is constitutionally sound. See Commonwealth

v. Cruz, 852 A.2d 287, 292 (Pa. 2004). In addition, our supreme court has

instructed that the timeliness of a PCRA petition is jurisdictional. If a PCRA

petition is untimely, a court lacks jurisdiction over the petition.      See

Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014); see

also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

      Here, appellant’s judgment of sentence became final on November 29,

2011, the date the direct appeal was discontinued at appellant’s request. See

McKeever, 947 A.2d at 785. Appellant’s PCRA petition was filed October 27,

2017, almost six years after the judgment of sentence became final.

Appellant’s PCRA petition is, therefore, patently untimely. As a result, the

PCRA court lacked jurisdiction to review the petition unless appellant pleaded

and proved one of the statutory exceptions to the PCRA time-bar.

      The three narrow statutory exceptions to the one-year time-bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly discovered facts; and (3) an after-recognized constitutional

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

2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii). The appellant bears the burden



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of pleading and proving the applicability of any exception.            42 Pa.C.S.A.

§ 9545(b)(1); see also Wharton, 886 A.2d at 1126 (citation omitted). If

appellant fails to invoke a valid exception to the PCRA time-bar, courts are

without   jurisdiction   to   review   the   petition   or   provide   relief.   See

Commonwealth v. Spotz, 171 A.3d 675, 676 (Pa. 2017).

      Here, appellant advances no claim that a jurisdictional time-bar

exception applies. Rather, he claims that his sentence is illegal because he

was “fraudulently and unlawfully induced into a plea-contract.” (Appellant’s

brief at 7.) It is well settled, however, that “even claims that a sentence was

illegal, an issue deemed incapable of being waived, are not beyond the

jurisdictional time restrictions.” Commonwealth v. Grafton, 928 A.2d 1112,

1114 (Pa.Super. 2007), citing Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999); Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).

Consequently, appellant’s illegal sentencing claim does not operate as an

independent exception to the PCRA’s jurisdictional time-bar.

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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