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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
BRANDON LAMONT McPHERSON,               :          No. 318 MDA 2017
                                        :
                       Appellant        :


               Appeal from the PCRA Order, February 1, 2017,
             in the Court of Common Pleas of Lancaster County
              Criminal Division at No. CP-36-CR-0001609-2007


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED AUGUST 04, 2017

     Brandon Lamont McPherson appeals pro se from the February 1, 2017

order entered in the Court of Common Pleas of Lancaster County which

dismissed, without a hearing, his second petition filed pursuant to the Post

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

     A previous panel of this court set forth the following:

                 On November 14, 2008, [a]ppellant was found
           guilty by a jury of attempted murder, aggravated
           assault, and two counts each of conspiracy and
           reckless endangerment.[1] . . .

           ....

           ...    Following his convictions, [a]ppellant was
           sentenced to twenty-five to sixty years [of]
           incarceration. On May 26, 2010, we affirmed. On

1
   18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 903(a)(1) & (2), and 2705,
respectively.
J. S42034/17


              November 10, 2010, [a]ppellant filed a timely PCRA
              petition seeking reinstatement of his right to file a
              petition for allowance of appeal. He was granted the
              requested relief, and our Supreme Court denied
              review on October 25, 2011.

                     Appellant filed his [first] PCRA petition on
              May 2, 2012. Counsel was appointed and filed an
              amended petition [alleging ineffective assistance of
              trial counsel] . . . .

                   [Following     an      evidentiary    hearing,]
              [a]ppellant’s  PCRA    petition   was    denied  on
              December 11, 2013. . . . This appeal followed.

Commonwealth          v.   McPherson,    No.   2224   MDA   2013,   unpublished

memorandum at 1-3 (Pa.Super. filed August 21, 2014) (record citations

omitted).

     The record reflects that on August 21, 2014, this court affirmed the

order denying PCRA relief. Appellant did not seek review with our supreme

court. On November 16, 2016 appellant filed the instant PCRA petition, his

second.     On January 6, 2017, the PCRA court gave appellant notice of its

intent to dismiss pursuant to Pa.R.Crim.P. 907(1). On February 1, 2017, the

PCRA court dismissed appellant’s petition. Appellant filed a timely notice of

appeal and timely complied with the PCRA court’s order to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

     Appellant raises the following issues for our review:

              [1.]   Did    trial   court’s error     in    denying
                     appellants [sic] post conviction relief, as
                     untimely filed when appellant established that
                     claim was within the plain language of the



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                       timeliness exception set forth at 42 C.S. [sic]
                       § 9545(b)(1) and section 9545(b)(2)[?]

                [2.]   Did trial courts [sic] violate appellants, [sic]
                       constitutional rights or the law of the
                       Commonwealth and United States, when,
                       consecutively,   [sic]   charging,   convicting,
                       and/or sentencing appellant to:      attempted
                       murder and aggravated assault[?]

Appellant’s brief at 2 (unnecessary capitalization omitted).

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).         “A judgment becomes 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 the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound.      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. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

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

         Here, appellant’s judgment of sentence became final on January 23,

2012, which was 90 days after our supreme court denied discretionary

review     on     October    25,   2011.     See    42   Pa.C.S.A.   § 9545(b)(3);



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Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa.Super.

2013); U.S. Sup.Ct.R. 13.     Therefore, appellant’s petition, filed more than

four and a half years later on November 16, 2016, is facially untimely. As a

result, the PCRA court lacked jurisdiction to review appellant’s petition,

unless appellant alleged and proved one of the statutory exceptions to the

time-bar, as set forth in 42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time-bar are:         when

the government has interfered with the appellant’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.    42    Pa.C.S.A.    §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The appellant bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a

valid exception to the PCRA time-bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Additionally, challenges to the legality

of the sentence are never waived.       Commonwealth v. Berry, 877 A.2d

479, 482 (Pa.Super. 2005) (en banc), appeal denied, 917 A.2d 844 (Pa.

2007). This means that a court may entertain a challenge to the legality of

the sentence, so long as the court has jurisdiction to hear the claim. In the

PCRA context, jurisdiction is tied to the filing of a timely PCRA petition. Id.



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     Here, appellant claims that a recent judicial decision constitutes a

newly discovered fact upon which he predicates his PCRA claim and that in

that recent judicial decision, the United States Supreme Court recognized a

new constitutional right that makes “the trial court’s actions of charging,

convicting, and/or sentencing appellant to consecutive terms of attempted

murder and aggravated assault, [] a violation of his [F]ifth and [F]ourteenth

amendment [sic] until he received the aforementioned new’s letter [sic]

informing   him    of    the   constitutional   violations   stated   in   Smith   v.

Wenderlich[, 825 F.3d 641 (2d Cir. 2016)]”. (Appellant’s brief at 5 & 9.)

As such, appellant claims that this judicial decision, which he contends is a

newly discovered fact, implicates the legality of his sentence. Appellant is

mistaken.

     Notwithstanding the fact that Smith v. Wenderlich entirely fails to

support the proposition that appellant advances, which is that it is

unconstitutional   for    a    sentencing   court    to   sentence    an    appellant

consecutively on convictions of aggravated assault and attempted murder,

the case was decided by the United States Court of Appeals for the Second




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Circuit, not the United States Supreme Court. Therefore, this decision does

not, and could not, fall under the PCRA’s new constitutional right exception. 2

      Accordingly, because appellant’s petition is untimely and appellant has

failed to plead and/or prove an exception enumerated in 42 Pa.C.S.A.

§ 9545(b), the PCRA court lacked jurisdiction, and it properly dismissed the

petition.

      Order affirmed.



      Moulton, J. joins this Memorandum.

      Olson, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/4/2017




2
  We note that even if appellant had met the underlying requirements of
§ 9545(b)(1)(iii), which he has not, appellant would still not be entitled to
any relief because he would not be able to satisfy the 60-day requirement
set forth in § 9545(b)(2) which requires an appellant to file his petition
within 60 days of the High Court’s decision, not, as appellant contends,
within 60 days of the date that appellant became aware of that decision.
Brandon, 51 A.3d at 235 (finding appellant’s claim alleging recently filed
judicial decision as newly discovered fact failed for, inter alia, not
complying with § 9545(b)(2), “the sixty-day period begins to run upon the
date of the underlying judicial decision[,]” not the date appellant became
aware of the decision).


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