J-S53040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOSEPH DOWLING,

                            Appellant                 No. 662 WDA 2014


                 Appeal from the PCRA Order February 28, 2014
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0004012-1994


BEFORE: DONOHUE, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                       FILED SEPTEMBER 09, 2014

        Appellant, Joseph Dowling, appeals from the order denying his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, without a hearing. We affirm.

        On September 8, 1994, Appellant entered a negotiated guilty plea to

the charges of rape, burglary, and aggravated assault related to his

participation in an August 23, 1993 incident in which he unlawfully entered

the victim’s home and attacked her at gunpoint.1 On September 15, 1994,




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3121(1), 3502(a), and 2702(a), respectively.
J-S53040-14


the Commonwealth gave notice2 of its intent to seek the applicable

mandatory sentence pursuant to 42 Pa.C.S.A. § 9712, sentences for

offenses committed with firearms.

       On November 2, 1994, the court sentenced Appellant to a term of

imprisonment of not less than ten nor more than twenty years on the rape

charge.    The court also imposed sentences of not less than ten nor more

than twenty years on the burglary and aggravated assault charges, which

terms were to run consecutive to the sentence on the rape charge and

concurrent with each other.          The court denied Appellant’s post-sentence

motion on November 18, 1994.3

       On January 13, 1999, Appellant filed a pro se first PCRA petition. The

PCRA court appointed counsel and, on April 11, 2000, the court issued notice

of its intent to dismiss the petition without a hearing.      See Pa.R.Crim.P.

907(1). The court dismissed the petition on July 13, 2000. Appellant did

not appeal.

       On February 24, 2014, Appellant filed a “Common Law Petition for

Review,” which we address as a pro se second PCRA petition raising, in

____________________________________________


2
  The document appears on the trial court’s docket, but is not part of the
certified record.
3
  Thereafter, Appellant filed a notice of appeal to a November 29, 1994
order. On January 19, 1995, the trial court notified Appellant that there was
no order filed on November 29, 1994, and advised him to speak with an
attorney regarding his options.



                                           -2-
J-S53040-14


effect, an illegality of sentence claim.4        On February 28, 2014, the court

denied the petition. This timely appeal followed.5

       Appellant raises three questions for our review:

       I.     Whether the trial judge committed an error of law by
       failing to adhere to the Appellants [sic] due process rights
       protected under the PA. and/or U.S. Constitutions?

       II.  Whether the [trial] court had the statutory authority to
       impose a mandatory sentence in applying 42 Pa.C.S.[A.]
       §[]9714?

       III. Whether the [trial] court was required to invoke its
       inherent power as a matter of due process of law and vacate the
       illegal sentence?

(Appellant’s Brief, at iii (emphasis omitted)).

             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. Further, where

____________________________________________


4
  Appellant titled this document as a Petition for Review. However, the PCRA
provides the only avenue for post-conviction collateral relief.         See 42
Pa.C.S.A. § 9542; see also Commonwealth v. Jackson, 30 A.3d 516, 521
(Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (noting that
appellant’s “‘motion to correct illegal sentence’ is a petition for relief under
the PCRA”).
5
 The court did not order Appellant to file a Rule 1925(b) statement of errors
on appeal, but filed a Rule 1925(a) opinion on May 9, 2014. See Pa.R.A.P.
1925.



                                           -3-
J-S53040-14


      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2013), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      Before we are able to consider the merits of Appellant’s claims on

appeal, however, we must determine whether the petition was untimely,

thus depriving us of jurisdiction to decide its merits.

      It is well-settled that:

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration
      of the time for seeking such review.          42 Pa.C.S.[A.] §
      9545(b)(3).        The PCRA’s timeliness requirements are
      jurisdictional; therefore, a court may not address the merits of
      the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions,
      regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the
      burden of proving an untimely petition fits within one of the
      three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (case citations

and footnote omitted; emphasis added).

      In the case sub judice, Appellant’s judgment of sentence became final

on December 2, 1994, at the expiration of the time for him to seek review of

his judgment of sentence in this Court.       See 42 Pa.C.S.A. § 9545(b)(3).

Therefore, he had one year from that date to file a petition for collateral

relief unless he pleads and proves that a timing exception applied. See 42

                                      -4-
J-S53040-14


Pa.C.S.A. §§ 9545(b)(1)(i)-(iii). Hence, Appellant’s current petition, filed on

February 24, 2014, is untimely on its face unless he pleads and proves one

of the statutory exceptions to the time-bar.

       Section 9545 of the PCRA provides only three exceptions that allow for

review of an untimely PCRA petition: (1) the petitioner’s inability to raise a

claim because of governmental interference; (2) the discovery of previously

unknown facts that would have supported a claim; and (3) a newly-

recognized constitutional right. See id. When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the   three    exceptions      to   the   PCRA   timing   requirements.   See

Commonwealth v. Johnston, 42 A.3d 1120, 1126 (Pa. Super. 2012) (“If

the petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.”) (citation omitted).      Also, a PCRA petition invoking one of these

statutory exceptions must “be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Here, Appellant utterly fails to assert any timeliness exception.6 (See

Appellant’s Brief, at 1-6; Appellant’s Reply Brief, at 1-5).       Accordingly, we

____________________________________________


6
  To the extent that Appellant may be claiming that a challenge to an illegal
sentence is never time-barred, we disagree. See Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always
(Footnote Continued Next Page)


                                           -5-
J-S53040-14


conclude that the PCRA court properly denied Appellant’s PCRA petition and

we are without jurisdiction to consider its merits.7 See Rykard, supra at

1183; Johnston, supra at 1126.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2014




                       _______________________
(Footnote Continued)

subject to review within the PCRA, claims must still first satisfy the PCRA’s
time limits or one of the exceptions thereto.”) (citation omitted).
7
  Although the PCRA court denied Appellant’s petition on its merits, “[t]his
Court may affirm a PCRA court’s decision on any grounds if the record
supports it.” Rykard, supra at 1183.



                                            -6-
