J-S36038-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               : IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                  Appellee                  :
                                            :
                     v.                     :
                                            :
HUGH GILLESPIE FUNCHES,                     :
                                            :
                  Appellant                 : No. 2090 WDA 2014

            Appeal from the PCRA Order Entered November 4, 2014,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division, at No(s): CP-02-CR-0001622-1999

BEFORE:      PANELLA, JENKINS, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 17, 2015

        Hugh Gillespie Funches (Appellant) appeals pro se from the order

entered November 4, 2014, dismissing his petition filed pursuant to the Post

Conviction Relief Act (PCRA).1 We affirm.

        Generally, a PCRA petition must be filed within one year from the
        date a judgment becomes final. There are three exceptions to
        this time requirement: (1) interference by government officials
        in the presentation of the claim; (2) newly discovered facts; and
        (3) an after-recognized constitutional right. When a petitioner
        alleges and proves that one of these exceptions is met, the
        petition will be considered timely. A PCRA petition invoking one
        of these exceptions must be filed within 60 days of the date the
        claims could have been presented. The timeliness requirements
        of the PCRA are jurisdictional in nature and, accordingly, a PCRA
        court cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citations and quotation marks omitted).


1
    42 Pa.C.S. §§ 9541-9546.


*Retired Senior Judge assigned to the Superior Court.
J-S36038-15


         On March 6, 2000, Appellant was found guilty in a non-jury trial of

numerous offenses in connection with a sexual assault on a 20-month-old

child.     He was sentenced to an aggregate term of 20 to 40 years’

incarceration. After the reinstatement of his direct appeal rights, Appellant’s

judgment of sentence was affirmed by a panel of this Court on November

13, 2001. Commonwealth v. Funches, 792 A.2d 613 (Pa. Super. 2001)

(unpublished memorandum). No petition for allowance of appeal was filed;

thus, Appellant had until approximately December 13, 2002 to file timely a

PCRA petition.2

         On August 11, 2014, Appellant filed the document at issue in this case,

entitled “Motion for Modification of Sentence Nunc Pro Tunc.”3 In that

motion, Appellant argued that he was denied his right to a jury trial;

therefore, he claims his sentence is illegal. Id. at ¶ 3. On October 6, 2014,

2
  Appellant timely filed his first pro se PCRA petition and counsel was
appointed. The PCRA court dismissed the petition without a hearing. This
Court affirmed the dismissal of the petition, and our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Funches,
860 A.2d 1128 (Pa. Super. 2004) (unpublished memorandum), appeal
denied, 871 A.2d 188 (Pa. 2005).
3
  That document provides some contradictory information. Appellant states
that “on March 6, 2000, [he] was found guilty of charges set forth in CP-02-
CR-0006423-1998, and sentenced to [a term of incarceration] without the
benefit of a jury.” Motion for Modification of Sentence, 8/11/2014
(capitalization omitted). However, the criminal docket number associated
with the aforementioned date and charges is docket number CP-02-CR-
0001622-1999. Docket number 6423 of 1998 is also Appellant’s case where
it appears he pled guilty to criminal trespass and was sentenced to three
months’ incarceration. Thus, the PCRA court corrected the docket number.


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J-S36038-15


the PCRA court, treating this document as a PCRA petition, filed its notice of

intent    to   dismiss   Appellant’s   petition pursuant to   Pa.R.Crim.P. 907.

Appellant filed a response, and on November 4, 2014, the PCRA court

dismissed the petition. Appellant timely filed a notice of appeal, and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

         The instant petition, filed on June 25, 2014, is patently untimely. The

PCRA court had no jurisdiction to entertain Appellant’s petition unless he

pled and offered proof of one or more of the three statutory exceptions to

the time bar.      See 42 Pa.C.S. § 9545(b)(1).      Appellant failed to do so.

Moreover, “[t]hough not technically waivable, a legality [of sentence] claim

may nevertheless be lost should it be raised for the first time in an untimely

PCRA petition for which no time-bar exception applies, thus depriving the

court of jurisdiction over the claim. Commonwealth v. Seskey, 86 A.3d

237, 241 (Pa. Super. 2014) (quotations omitted). Accordingly, the PCRA

court properly dismissed his petition.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2015



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