J-S40022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                        Appellee               :
                                               :
                v.                             :
                                               :
    ANTHONY ESKRIDGE,                          :
                                               :
                       Appellant               :     No. 3350 EDA 2017


             Appeal from the PCRA Order Entered August 29, 2017
              in the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0007231-2011


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 10, 2018

       Appellant, Anthony Eskridge, appeals pro se from the denial of his

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

Pa.C.S.A. §§ 9541-9546.1 We affirm.

       We take the following pertinent facts and procedural history from our

independent review of the certified record.         On April 16, 2012, with the

assistance of counsel, Appellant entered a negotiated guilty plea to robbery

as a felony of the first degree in exchange for the Commonwealth’s dismissal



____________________________________________


1 Although Appellant’s pro se notice of appeal purports to appeal from the
“[m]unicipal [c]ourt’s [j]udgment,” for the reasons discussed infra, this case
is more properly classified as a PCRA appeal. (Notice of Appeal, 9/18/17, at
1). We have amended the caption accordingly.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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of sixty-five other charges against him.2 (See N.T. Guilty Plea, 4/16/12, at

6; Information, 1/19/12, at 1-16).               Appellant waived a post-sentence

investigation report (PSI), and the trial court sentenced him to the agreed

term of not less than seven nor more than fourteen years’ imprisonment. He

did not file a direct appeal.

        On October 26, 2012, Appellant filed a pro se first PCRA petition.

Appointed counsel filed a motion to withdraw and Turner/Finley3 “no-merit”

letter on December 14, 2012. On January 3, 2013, the court served notice of

intent to dismiss portions of Appellant’s petition without a hearing.        See

Pa.R.Crim.P. 907(1).       Appellant did not respond.      After a hearing on the

remaining sections of Appellant’s PCRA petition, the court denied it in full, on

February 8, 2013. It granted counsel’s petition to withdraw on March 21,

2013.

        On August 18, 2017, Appellant filed a pro se request for relief, alleging,

inter alia, that he was entitled to “a correction of sentence[,]” and challenging

the voluntariness of his guilty plea because he was not provided “full

disclosure[.]” (Second Pro Se PCRA Petition, 8/18/17, at unnumbered page

1) (unnecessary capitalization omitted). On August 29, 2017, the court denied

Appellant’s filing on the basis that Appellant was not entitled to the relief
____________________________________________


2 Appellant also pleaded guilty to robbery at docket number 6816 of 2011 at
the same hearing. (See N.T. Guilty Plea, at 14). That case is not relevant to
this appeal.

3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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requested.    (See Order, 8/29/17; Trial Court Opinion, 2/01/18, at 3).

Appellant timely appealed pro se. The court did not order him to file a concise

statement of errors raised on appeal, but it filed an opinion on February 1,

2018. See Pa.R.A.P. 1925.

      Appellant raises three questions for this Court’s review.

      A.)   What sentencing statutes in the Sentencing Code authorized
      the [trial court] to impose the sentence the (sic) was imposed
      upon [Appellant]?

      B.) What mandatory minimum sentencing statute authorized
      the [trial court] to impose the sentence that was imposed upon
      [Appellant]?

      C.) Was the sentence of total confinement placed against
      Appellant illegally imposed which would therefore make
      Appellant’s entire sentence void and subject to correction due to
      the undeniable fact that a [PSI] was never ordered in Appellant’s
      case, nor was it rightfully or knowingly wavied (sic) by Appellant?

(Appellant’s Brief, at 3) (unnecessary capitalization, quotation marks,

emphasis, and brackets omitted; some brackets added).

      As a preliminary matter, we observe that the trial court should have

treated Appellant’s request for relief as a second PCRA petition. “It is well-

settled that the PCRA is intended to be the sole means of achieving post-

conviction relief. 42 Pa.C.S.[A.] § 9542[.]” Commonwealth v. Taylor, 65

A.3d 462, 465 (Pa. Super. 2013) (case citation omitted).          Therefore, “an

untimely post-sentence motion filed after finality of judgment is to be treated

as a PCRA petition.” Id. at 467.




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      Here, Appellant’s August 18, 2017 filing sought, inter alia, “a correction

of sentence[,]” and alleged that he entered his guilty plea “under threat,

duress and coercion,” claims for which the PCRA provides relief. (Second Pro

Se PCRA Petition, at unnumbered page 1); see also 42 Pa.C.S.A. §

9543(a)(2)(iii), (vii). Therefore, we treat Appellant’s document as a second

PCRA petition.

      Our standard of review for an order denying PCRA relief is well-settled:

             We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of record. We will not disturb a PCRA court’s ruling if it
      is supported by evidence of record and is free of legal error. This
      Court may affirm a PCRA court’s decision on any grounds if the
      record supports it. We grant great deference to the factual
      findings of the PCRA court and will not disturb those findings
      unless they have no support in the record. However, we afford no
      such deference to its legal conclusions.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).          However, “if a PCRA

[p]etition is untimely, a trial court has no jurisdiction to entertain the petition.”

Commonwealth v. Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations

omitted).

      It is well-settled that “[a] petition for relief under the PCRA must be filed

within one year of the date the PCRA petitioner’s judgment of sentence

becomes final unless the petitioner alleges and proves that an exception to

the one-year time-bar is met. [See] 42 Pa.C.S.[A.] § 9545.” Taylor, supra

at 468.

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      In this case, Appellant’s judgment of sentence became final on May 16,

2012, when the time for filing a direct appeal to this Court expired.          See

Pa.R.A.P. 903(a); 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until May 16,

2013 to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because

he did not file his current petition until August 18, 2017, over four years later,

the petition is facially untimely. Thus, he must plead and prove that he falls

under one of the exceptions at Section 9545(b) of the PCRA. See 42 Pa.C.S.A.

§ 9545(b).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:

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

Id. at 9545(b)(i)-(iii). It is well-settled that “[t]he PCRA petitioner bears the

burden    of   proving   the   applicability   of   one   of   the   exceptions.”

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (citation omitted).

      Here, Appellant fails to acknowledge either the untimeliness of his

petition or plead and prove the applicability of any of the exceptions. (See


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Appellant’s Brief, at pages 1-8).4 Additionally, although he properly notes that

legality of sentence claims cannot be waived, this does not save his untimely

petition, because such “claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.” Commonwealth v. Woods, 179 A.3d 37, 43

(Pa. Super. 2017) (citation omitted); (see Appellant’s Brief, at 4-5).

       Therefore, because Appellant has failed to plead and prove an exception

to the PCRA time-bar, both the PCRA court and this Court lack jurisdiction to

consider the merits of his issues.5 See Spotz, supra at 678; Hutchins,

supra at 53.      Accordingly, we conclude that the court properly denied his

request for relief, albeit for a different reason. See Rykard, supra at 1183.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/18

____________________________________________


4   Some page numbering provided.

5 Moreover, even if we had jurisdiction to consider Appellant’s issues, he would
not be eligible for relief because his claims are waived on two bases. First, he
could have raised them in his first PCRA petition, but failed to do so. See 42
Pa.C.S.A. §§ 9543(a)(3), 9544(b). In addition, he is raising different issues
here than he raised in the PCRA court.                 See Pa.R.A.P. 302(a);
Commonwealth v. Johnson, 179 A.3d 1105, 1123 n.10 (Pa. Super. 2018)
(“[C]laim not raised in a PCRA petition cannot be raised for the first time on
appeal.”) (citation omitted); (see also Appellant’s Brief, at 3; Second Pro Se
PCRA Petition, at unnumbered page 1).

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