J-S06023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NATHANIEL RHODES, JR.                      :
                                               :
                       Appellant               :   No. 2821 EDA 2018

            Appeal from the PCRA Order Entered September 11, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0008491-2003


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 21, 2019

        Appellant, Nathaniel Rhodes, Jr., appeals pro se from the Order entered

September 11, 2018, dismissing as untimely his seventh Petition for collateral

relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        The factual background of this case, as well as its lengthy procedural

history, is well documented. See PCRA Ct. Op., filed 11/29/18, at 1-4. We

need not repeat those details here but briefly note the following:

        In March 2004, a trial commenced, following which the jury convicted

Appellant of three counts of Robbery and one count of Receiving Stolen

Property.1 The charges arose from a robbery committed by Appellant at a

convenience store located in West Norriton, Pennsylvania.        Thereafter, the

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1   See 18 Pa.C.S. §§ 3701(a)(1), 3925(a), respectively.
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trial court sentenced Appellant to twenty-five to fifty years of incarceration

pursuant to the third-strike Statute, 42 Pa.C.S. § 9714(a)(2).       Appellant

timely appealed; this Court affirmed the Judgment of Sentence; and, in

December 2005, the Supreme Court of Pennsylvania denied Appellant’s

Petition for allowance of appeal.

      Since Appellant’s Judgment of Sentence became final, he has pursued

collateral attacks on the legality of his sentence. See, e.g., Commonwealth

v. Rhodes, 1053 EDA 2013, unpublished memorandum at 3 (Pa. Super. filed

December 11, 2013) (“[Appellant] asserts that his sentence is illegal because

the trial court improperly sentenced him pursuant to the three strikes

provision . . . when he was never sentenced as a second strike offender.”).

Those collateral attacks have proven unsuccessful. See id. at 4 (affirming the

PCRA court’s dismissal of Appellant’s second Petition for collateral relief as

untimely); see also, e.g., Commonwealth v. Rhodes, 1912 EDA 2016,

unpublished memorandum at 4 (Pa. Super. filed January 31, 2017) (affirming

the PCRA court’s dismissal of Appellant’s sixth Petition for collateral relief

premised upon a similar claim that his sentence is illegal).

      In July 2018, Appellant filed pro se a Petition for Writ of Habeas Corpus

and/or Extraordinary Relief, again asserting that imposition of a third-strike

sentence was illegal. Petition, 7/12/18, at 2-3. Following notice of its intent

to dismiss Appellant’s Petition without a hearing, and having received no

response from Appellant, the PCRA court dismissed his Petition without a

hearing. PCRA Ct. Order, 9/11/18.

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       Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

Statement. The PCRA court issued a responsive Opinion.

       Appellant raises two issues in this appeal: (1) whether the PCRA court

erred in analyzing his Petition under the PCRA; and (2) whether his third strike

sentence is “patently and obviously erroneous.” See Appellant’s Br. at 3-5.2

       In his first issue, Appellant asserts that the PCRA court erred in

addressing his Petition pursuant to the PCRA. Appellant’s Br. at 17. Notably,

Appellant denies that he challenges the legality of his sentence. Id. at 21.

Rather, according to Appellant, the alleged errors in his sentence are

attributable to ambiguity in the statutory language of 42 Pa. § 9714(a).

Appellant’s Br. at 19-20. Therefore, Appellant asserts, his Petition properly

seeks habeas corpus relief and is not subject to the timeliness requirements

of the PCRA. Id. at 21 (citing in support Commonwealth v. Heredia, 97

A.3d 392 (Pa. Super. 2014)).

       Contrary to his argument, Appellant has challenged, specifically and

repeatedly, the legality of his sentence. See Petition, 7/12/18, at pp. 2-5, ¶

5 (“[Appellant’s] sentence is patently illegal[.]”), ¶ 6 (“[Appellant’s] current

sentence . . . is patently erroneous[.]”), ¶ 7 (asserting that courts have

“inherent power to correct patent sentencing illegalities at any time”), ¶ 12

(“[T]he sentence [Appellant] is now serving . . . is illegal[.]”). Thus, we reject

Appellant’s effort to recast the nature of his claim.
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2We have reversed the order of issues presented by Appellant for ease of
analysis.

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      Further, Appellant’s reliance on Heredia is misplaced. In Heredia, a

petitioner sought collateral relief, requesting credit for time spent incarcerated

prior to his guilty plea. Heredia, supra at 394. According to the petitioner,

the Department of Corrections (DOC) had denied him credit improperly,

relying on a commitment form prepared by the clerk of courts rather than the

sentencing order signed by the judge. Id.

      The PCRA court denied relief, and this Court affirmed, concluding that

the petitioner’s claim was not cognizable under the PCRA. Id. at 394-95. In

so doing, we distinguished between three unique types of claims. First, where

a petitioner challenges the propriety of a sentence, the claim falls within the

scope of the PCRA. Id. at 394 (citation omitted). Second, where a claimant

contests the DOC’s computation of his or her sentence, “the appropriate

vehicle for redress would be an original action in the Commonwealth Court.”

Id. at 395 (citation omitted). Finally, where “the alleged error is thought to

be attributable to ambiguity in the sentence imposed by the trial court, then

a writ of habeas corpus ad subjiciendum lies to the trial court for clarification

and/or correction of the sentence imposed.” Id. (citation omitted).

      As the petitioner had asked that DOC “enforce the trial court’s

sentencing order as valid,” the propriety of his sentence was not at issue. Id.

Thus, we determined that his claim was not cognizable under the PCRA. Id.

      In contrast, here, Appellant specifically challenges the propriety of his

sentence. Cf. Heredia, supra at 394. He does not assert ambiguity in the

sentence imposed, but rather alleges ambiguity in the statutory language

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authorizing his sentence. For these reasons, we conclude the court properly

considered Appellant’s Petition under the PCRA.

      Turning to his second issue, Appellant asserts the PCRA court erred in

denying him collateral relief. Appellant’s Br. at 13-16.

      We review an order denying a petition for collateral relief to determine

whether the PCRA court’s decision is supported by the evidence of record and

free of legal error.   Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa.

Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014)).

      Initially, we address the timeliness of Appellant’s Petition, as it

implicates our jurisdiction and may not be altered or disregarded in order to

address the merits of his claims. See Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).

      Under the PCRA, any petition for relief, including second and subsequent

petitions, must be filed within one year of the date on which the judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). There are three statutory

exceptions. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). In addition, Section 9545(b)(2)

requires that any PCRA petition invoking one of the statutory exceptions to

the time requirements of the PCRA “shall be filed within 60 days of the date

the claim could have been presented.”         42 Pa.C.S § 9545(b)(2); see




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Commonwealth v. Williamson, 21 A.3d 236, 241 (Pa. Super. 2011).3

Finally, “it is the petitioner’s burden to plead in the petition and prove that

one of the exceptions applies.” Commonwealth v. Beasley, 741 A.2d 1258,

1261 (Pa. 1999). This burden “necessarily entails an acknowledgment” that

the petition is untimely. Id.

       Appellant’s Judgement of Sentence became final on January 23, 2006.

See PCRA Ct. Op. at 7. Thus, Appellant had until January 23, 2007, to file a

petition under the PCRA.          42 Pa.C.S. § 9545(b)(1).   Appellant’s current

Petition, filed July 12, 2018, is more than eleven years late and, therefore,

patently untimely.

       Appellant does not acknowledge his untimeliness, nor does he plead in

his Petition that one of the exceptions to the time requirements of the PCRA

applies. Beasley, supra at 1261. Accordingly, we lack jurisdiction to review

the merits of his claim. Bennett, supra at 1267.

       For these reasons, we affirm the Order of the PCRA court.

       Order affirmed.




____________________________________________


3 Effective December 24, 2018, Section 9545(b)(2) now provides that, for
claims arising on December 24, 2017, or after, “[a]ny petition invoking an
exception . . . shall be filed within one year of the date the claim could have
been presented.” Appellant’s Petition, filed in July 2018, preceded the
effective date of the amended statute.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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