J-S46024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

KAREEN BROWN

                            Appellant                     No. 3110 EDA 2015


                Appeal from the PCRA Order September 1, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000837-2007


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                  FILED AUGUST 18, 2016

        Kareen1 Brown appeals, pro se, from the order entered in the Court of

Common Pleas of Chester County, on September 1, 2015, denying him relief

on his pro se second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. § 9541 et seq.              The PCRA court determined Brown’s

PCRA petition was untimely.         In this appeal, Brown claims the PCRA court

erred in determining this was Brown’s second PCRA petition and in failing to

recognize he is serving an illegal sentence pursuant to Alleyne v. United

States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).            After a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  This name is spelled “Kareen” or “Kareem” throughout the certified record.
However, in documents that appear to have been filled out by the appellant,
it is spelled “Kareen”. Accordingly, we use that spelling.
J-S46024-16



thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.

      Before we can address any of Brown’s substantive claims, we must

address the timeliness of his petition.

      [T]he timeliness of a PCRA petition implicates the jurisdiction of
      this Court and the PCRA court. Commonwealth v. Williams,
      35 A.3d 44, 52 (Pa. Super. 2011)(citation omitted), appeal
      denied, 616 Pa. 467, 50 A.3d 121 (2012). “Pennsylvania law
      makes clear no court has jurisdiction to hear an untimely PCRA
      petition.” Id. The PCRA “confers no authority upon this Court to
      fashion ad hoc equitable exceptions to the PCRA time-bar [.]”
      Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 983
      (2011) (citation omitted). This is to “accord finality to the
      collateral review process.” Id. “A petition for relief under the
      PCRA, including a second or subsequent petition, must be filed
      within one year of the date the judgment becomes 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.A. §
      9545(b)(1)(i), (ii), and (iii), is met.” The act provides, in
      relevant part, as follows.

         § 9545. Jurisdiction and proceedings
                                       ...
          (b) Time for filing petition.—

            (1) Any petition under this subchapter, including a
            second or subsequent petition, shall be filed within
            one year of the date the judgment becomes final,
            unless the petition alleges and the petitioner proves
            that:

              (i) the failure to raise the claim previously was
              the result of interference by 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


                                     -2-
J-S46024-16


              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.

          (2) Any petition invoking an exception provided in
          paragraph (1) shall be filed within 60 days of the
          date the claim could have been presented.
                                   ...
     42 Pa.C.S.A. § 9545(b).

Commonwealth v. Medina, 92 A.3d 1210, 1215 (Pa. Super. 2014).

     Brown’s underlying claims implicate the legality of his sentence. Such

claims are, generally, not subject to waiver. However,

     “[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.” [Commonwealth v. Fowler, 930 A.2d 586, 592
     (Pa. Super. 2007)] (quoting Commonwealth v. Berry, 877
     A.2d 479, 482 (Pa. Super. 2005) (en banc), appeal denied, 591
     Pa. 688, 917 A.2d 844 (2007)). “Although legality of sentence is
     always subject to review within the PCRA, claims must still first
     satisfy the PCRA's time limits or one of the exceptions thereto.”
     Fowler, supra, Pennsylvania law makes clear no court has
     jurisdiction to hear an untimely PCRA petition. Commonwealth
     v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). Thus, a
     collateral claim regarding the legality of a sentence can be lost
     for failure to raise it in a timely manner under the PCRA.
     Commonwealth v. Wojtaszek, 951 A.2d 1169, 1173 n. 9 (Pa.
     Super. 2008), appeal denied, 600 Pa. 733, 963 A.2d 470 (2009).

Commonwealth v. Infante, 63 A.3d 358, 375 (Pa. Super. 2013).

     Accordingly, we need not examine the merits of Brown’s claim of

illegal sentence if the claim itself has not been raised in a timely manner.

                                       -3-
J-S46024-16


Here, the PCRA court determined, and the certified record confirms, that

Brown’s judgment of sentence became final on March 7, 2011 when the

United States Supreme Court denied Brown’s Petition for Writ of Certiorari

on direct appeal. Pursuant to statute, Brown had one year from that date,

or until March 7, 2012, to file his PCRA petition. On June 15, 2015, Brown
                                    2
filed this petition, his second.        It is facially untimely by greater than three

years.    Nonetheless, Brown claims the petition is timely based upon the

newly recognized constitutional right announced by the United States

Supreme Court in Alleyne, supra. See 42 Pa.C.S. § 9545(b)(1)(iii). This

argument is unavailing.

       In order to qualify for any of the three exceptions to the one-year

timeliness limit, the petitioner must file the claim within 60 days of the date

the claim could have been presented.             42 Pa.C.S. § 9545(b)(2).    In that

regard, the PCRA court found that Alleyne was filed on June 17, 2013,

which meant Brown had until Friday, August 16, 2013 in which to file his

petition. See Notice of Intent to Dismiss PCRA Petition, at 3-5 (7/28/2015).

The certified record confirms Brown did not file the instant petition until June


____________________________________________


2
  Brown filed a prior petition, seeking permission to file a PCRA petition nunc
pro tunc. That petition was denied by the PCRA court, which decision was
affirmed by a panel of our Court. See Commonwealth v. Brown, 106
A.3d 181 (Pa. Super. 2014) (unpublished memorandum), allowance of
appeal denied, 109 A.3d 677 (Pa. 2015).




                                           -4-
J-S46024-16


15, 2015.      Accordingly, he is not entitled to the benefit of the newly

recognized constitutional right exception.3

       Because     the   petition    was       untimely,   the   PCRA   court   correctly

determined it did not have jurisdiction to address the merits of Brown’s

petition. Accordingly, the PCRA court did not err in dismissing the petition. 4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/18/2016




____________________________________________


3
   Because the petition does not satisfy the requirements of Section
9545(b)(2), we need not discuss the fact that Alleyne is not subject to
retroactive application, which would be another reason why Brown is not
entitled to relief. See Commonwealth v. Washington, ___ A.3d ___,
2016 WL 3900988 (Pa. 2016) (7/19/2016)
4
 The PCRA court also asserted that Brown’s appeal of the denial of his PCRA
petition was untimely filed. We recognize our prerogative to remand this
matter for a hearing to determine Brown’s compliance with the prisoner
mailbox rule. See Smith v. Pennsylvania Board of Probation and
Parole, 683 A.2d 278, 282-83 (Pa. 1996). However, given our disposition,
we decline as it “would be futile to do so.” See Commonwealth v.
Chambers, 35 A.3d 34, 40 (Pa. Super. 2011).



                                           -5-
J-S46024-16




              -6-
