J-S33033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

BARRY CHEESEBORO

                         Appellant                   No. 2431 EDA 2014


               Appeal from the PCRA Order August 12, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0100191-1998,
                         CP-51-CR-0206551-1998


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

JUDGMENT ORDER BY LAZARUS, J.:                        FILED JUNE 05, 2015

      For the reasons that follow, we affirm the order of the Court of

Common Pleas of Philadelphia County, dismissing Barry Cheeseboro’s

petition for writ of habeas corpus as an untimely petition filed under the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”).

      Cheeseboro filed a petition for writ of habeas corpus on July 29, 2013,

claiming that his sentence violated the Eighth Amendment prohibition

against cruel and unusual punishment. Such a claim constitutes a challenge

to the legality of his sentence, Commonwealth v. Seskey, 86 A.3d 237,

241 (Pa. Super. 2014), a claim which is cognizable under the PCRA.

Commonwealth v. Condordia, 97 A.3d 366, 372 (Pa. Super. 2014).

Because claims that are cognizable under the PCRA are to be pursued within
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the parameters of that statute, id., the trial court properly treated

Cheeseboro’s filing as a PCRA petition.

      A PCRA petition, including a second or subsequent petition, must be

filed within one year of the date the underlying judgment of sentence

becomes final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth

v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). 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 time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3);

see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.

2006). Here, Cheeseboro’s judgment of sentence became final no later than

November 29, 2004, upon the expiration of the ninety-day period for filing a

writ of certiorari with the United States Supreme Court. See 42 Pa.C.S.A. §

9545(b)(3); U.S.Sup.Ct.R. 13.     Thus, he had one year from that date, or

until November 29, 2005, to file a timely PCRA petition. See 42 Pa.C.S.A. §

9545(b).   Cheeseboro did not file the instant petition until July 29, 2013,

more than 8½ years after his judgment of sentence became final.

Accordingly, the PCRA court had no jurisdiction to entertain Cheeseboro’s

petition unless he pleaded and offered to prove one of the three statutory

exceptions to the time bar. See 42 Pa.C.S.A. § 9545(b). Cheeseboro failed

to do so. Accordingly, the PCRA court properly dismissed his petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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