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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HANIFASIM SAEED

                            Appellant                 No. 1146 EDA 2016


               Appeal from the PCRA Order Dated March 22, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003995-2008


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                        FILED NOVEMBER 30, 2016

        Appellant, Hanisfasim Saeed, appeals pro se from the order denying

his second petition for post-conviction relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.           The PCRA court

denied relief on the basis that Appellant’s petition was untimely, and

therefore not within its jurisdiction. Upon review, we affirm.

        On June 2, 2009, Appellant entered a negotiated guilty plea to multiple

offenses, including third-degree murder and homicide by vehicle while DUI,

as a result of a motor vehicle collision in which a person in the other car was




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*
    Former Justice specially assigned to the Superior Court.
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killed.1 On that same date, the trial court imposed the negotiated sentence

of 20 to 40 years’ incarceration. Appellant did not file a direct appeal.

       On May 29, 2010, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel, and on July 15, 2011, PCRA counsel filed a

“no-merit” letter and petition to withdraw pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc).            After issuing notice pursuant to

Pa.R.Crim.P. 907, the PCRA court, on October 21, 2011, dismissed

Appellant’s petition and permitted PCRA counsel to withdraw. Once again,

Appellant did not file a direct appeal.

       The pro se PCRA petition at issue in this appeal was docketed with the

PCRA court on July 21, 2014. Within this petition, Appellant asserts that he

recently discovered that his June 2, 2009 sentence is illegal. On March 22,

2016, the PCRA court dismissed this PCRA petition as untimely. 2 Appellant

filed this appeal on April 4, 2016.

       Appellant raises the following issues:

____________________________________________


1
  18 Pa.C.S. §§ 2502(c), 2701(a), 2702(a), and 75 Pa.C.S. §§ 3735(a),
3735.1(a), 3742(a), 3802(d).
2
  Although the PCRA court did not provide notice pursuant to Pa.R.Crim.P.
907, “our Supreme Court has held that where the PCRA petition is untimely,
the failure to provide such notice is not reversible error.” Commonwealth
v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014).




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         1. Whether the PCRA court erred in denying Appellant’s
            second or subsequent (successive) [pro se PCRA
            petition]?

         2. Whether the PCRA court ignored the statutory
            “exception” rule governing second or subsequent
            (successive) and/or repetitive petitions involving 42
            Pa.C.S.A. §9545(b) – “exceptions to one-year filing
            period; and §9545(b)(i)(iii) – newly recognized
            constitutional rights?

         3. Whether Appellant’s illegal sentence is applicable to the
            “exception” rule of the PCRA one-year filing [period]?

Appellant’s Brief at 4 (excess capitalization omitted).

      It is well-settled that this Court’s standard of review regarding an

order dismissing a petition under the PCRA is whether the determination of

the PCRA court is supported by the evidence of record and is free of legal

error. Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).      Moreover, a PCRA court may decline to hold a

hearing on the petition if the PCRA court determines that the petitioner’s

claim is patently frivolous and is without support.       Commonwealth v.

Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

      Because this is Appellant’s second petition for post-conviction relief, he

must meet a more stringent standard than that applicable to a first petition:

“A second or any subsequent post-conviction request for relief will not be

entertained unless a strong prima facie showing is offered to demonstrate

that a miscarriage of justice may have occurred.”         Commonwealth v.

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Burkhardt, 833 A.2d 233, 236 (Pa. Super. 2003) (en banc) (citations

omitted). “A petitioner makes a prima facie showing if he demonstrates that

either the proceedings which resulted in his conviction were so unfair that a

miscarriage of justice occurred which no civilized society could tolerate, or

that he was innocent of the crimes for which he was charged.” Id.

        The   timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition, set forth at 42 Pa.C.S. §

9545(b)(1), is met.3         A PCRA petition invoking one of these statutory

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3
    The exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of government officials with the presentation of the
        claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United States.

        (ii) the facts upon which the claim is predicated were unknown
        to the petitioner and could not have been ascertained by the
        exercise of due diligence; or

        (iii) the right asserted is a constitutional right that was
        recognized by the Supreme Court of the United States or the
        Supreme Court of Pennsylvania after the time period provided in
        this section and has been held by that court to apply
        retroactively.

(Footnote Continued Next Page)


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exceptions must “be filed within 60 days of the date the claims could have

been presented.” See Hernandez, 79 A.3d at 651-52 (citations omitted);

see also 42 Pa.C.S. § 9545(b)(2). Exceptions to the PCRA’s time bar must

be pled in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see

also Pa.R.A.P. 302(a) (providing that issues not raised before the lower

court are waived and cannot be raised for the first time on appeal).

      Appellant’s judgment of sentence became final on July 2, 2009, when

the thirty-day time period for filing an appeal to this Court expired. See 42

Pa.C.S. § 9545(b)(3). Thus, Appellant had until July 2, 2010, to file a timely

PCRA petition. As the instant petition was docketed with the PCRA court on

July 21, 2014,4 it is patently untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies. See

Hernandez, 79 A.3d at 651-52.

      Appellant claims that he timely filed the PCRA petition at issue within

sixty days of discovering that in 2009 he he received “an illegal sentence

greater than the lawful maximum.”                Appellant’s Brief at 11.   Appellant

therefore is invoking the exception in Section 9545(b)(1)(ii), for facts

“unknown to the petitioner” that “could not have been ascertained by the
                       _______________________
(Footnote Continued)

42 Pa.C.S. §§ 9545(b)(1).
4
 The petition is dated July 9, 2014, and the mailing label indicates that it
was sent from SCI Coal Township on July 21, 2014.



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exercise of due diligence.”5. As the language of the statute makes clear, a

petitioner invoking that exception must establish that the facts upon which

the claim are predicated were unknown to him, and that he could not have

ascertained     the   facts   earlier   despite   the   exercise of   due diligence.

Commonwealth v. Bennett, 1270-72 (Pa. 2007); see Commonwealth v.

Cox, 2016 WL 5416327, at *7-8 (Pa. 2016).                    The determination of

timeliness does not require a merits analysis.            Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1268 (Pa. 2008).

       Appellant explains the purported “illegality” of his sentence as follows:

             In the instant case, Appellant was originally charged for:
       1), Simple Assault; 2) Third Degree Murder; 3) Homicide by
       Vehicle while Driving Under the Influence; 5) Accident Involving
       Death or Personal Injury; 6) DUI: Controlled Substance —
       Impaired Ability; 7) Aggravated Assault; 8) Fleeing the Scene;
       and 9) Aggravated Assault by Vehicle while Driving Under the
       Influence. Consequently, Appellant entered into a negotiated
       plea agreement. A review of the Certified Record fails to show
       whether any of the said criminal charges was reduced to charges
       as an ungraded felony. Initially, Appellant was sentenced to a
       fixed term period of twenty (20) to forty (40) year[s] of
       incarceration a part of the negotiated plea agreement.

             Thus, 18 Pa. C.S. Section 106.[5], crimes charged as
       felonies without specification of degree are of the third degree
       and nothing higher. A felony of the third degree is subject to a
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5
  This is the only exception discussed in Appellant’s brief. In his second
issue, Appellant asserts that the PCRA court did not consider the newly-
recognized constitutional right exception found at Section 9545(b)(iii).
Within his brief, however, Appellant fails to identify any constitutional
decision that would apply to his sentence. Thus, we do not consider the
Section 9545(b)(iii) claim further.




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      maximum term of seven (7) years maximum. Especially where
      there is in existence of lack of intent to inflict seriously bodily
      injury to another person and where evidence exhibits that
      Appellant was heavily under the influence of uncontrolled
      substance while driving. Therefore, the sentence that Ha'Nifasim
      Saeed received is illegal.

Appellant’s Brief at 9.

      In rejecting Appellant’s claim that his appeal is timely, the PCRA court

found that Appellant did not demonstrate the exercise of due diligence. As

explained by the PCRA court, because the petition was filed over five years

after Appellant was sentenced, his illegal sentencing claims “were not

presented within 60 days of the date they could have been presented.”

PCRA Court Opinion, 7/11/16, at 3.

      Our review of the certified record reveals that Appellant, in the

exercise of due diligence, could have discovered his sentencing claim prior to

the filing of his second PCRA petition on July 21, 2014.      Within his brief,

Appellant proffers no evidence to the contrary, other than his bare allegation

that his claims that his sentence was illegal are based upon facts that “could

not have been ascertained during trial or sentencing by the exercise of due

diligence.” Appellant’s Brief at 12. Appellant does not identify the facts to

which he is referring, and simply states that he “became aware of his illegal

sentence on July 7, 2014, and within the allowed period of the 60-day

‘exception’ rule (newly-discovered) evidence, that . . .   within 14-days” of

the time for filing a subsequent PCRA petition.” Id. Appellant has not met

his statutory burden, and his second PCRA petition therefore is untimely.

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See Pa.R.Crim.P. 902(A)(12) (PCRA petition must proffer supporting facts by

referring to the record or identifying other supporting affidavits, documents

and other evidence showing such facts); see also Commonwealth v

Collins, 687 A.2d 1112, 1115 (Pa. 1996).

      Appellant also asserts that his illegal sentencing claim can never be

waived. Our case law holds otherwise. As long as this Court has jurisdiction

over the matter, a legality of sentencing issue is reviewable and cannot be

waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007).

However, “although [the] legality of [a] sentence is always subject to review

within the PCRA, [the] claim[] must first satisfy the PCRA’s time limits or one

of the exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999). If such a claim is raised in an untimely PCRA petition, neither

the PCRA court nor this Court has jurisdiction to consider it. See id.

      In sum, our review confirms the PCRA court’s determination that

Appellant’s PCRA petition is untimely because Appellant failed to “invoke one

of the three exceptions that would extend the one-year time limitation.”

Trial Court Opinion, 7/11/16, at 3.    The PCRA court properly held that it

lacked jurisdiction to address the merits of Appellant’s second PCRA petition.

Accordingly, we affirm the PCRA court’s order denying Appellant post-

conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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