J-S28040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ALFRED ALONZO MAYO,                        :
                                               :
                       Appellant               :      No. 1820 MDA 2017

                Appeal from the PCRA Order November 9, 2017
              in the Court of Common Pleas of Schuylkill County,
             Criminal Division at No(s): CP-54-CR-0001538-2008,
                            CP-54-CR-0001540-2008

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 19, 2018

       Alfred Alonzo Mayo (“Mayo”) appeals, pro se, from the Order dismissing

his Petition for writ of habeas corpus ad subjiciendum.1 We affirm.

       In March 2010, a jury convicted Mayo of possession with intent to deliver

a controlled substance (crack cocaine), possession of a controlled substance

(crack cocaine), and criminal use of a communications facility. See 35 P.S.

§§ 780-113(a)(30), (16); 18 Pa.C.S.A. § 7512.           The trial court sentenced


____________________________________________


1 The Post Conviction Relief Act (“PCRA”) court properly addressed Mayo’s
habeas corpus ad subjiciendum Petition, which was filed after the judgment
of sentence became final, under the PCRA, as Mayo only raised ineffective
assistance of counsel claims. See Commonwealth v. West, 938 A.2d 1034,
1043 (Pa. 2007) (stating that “the PCRA subsumes all forms of collateral relief,
including habeas corpus, to the extent a remedy is available under such
enactment.”) (emphasis omitted); id. (noting that all claims of ineffective
assistance of counsel are cognizable under the PCRA); see also 42 Pa.C.S.A.
§ 9542.
J-S28040-18


Mayo to an aggregate prison term of six to twelve years. On May 24, 2011,

this Court affirmed the judgment of sentence.        See Commonwealth v.

Mayo, 30 A.3d 547 (Pa. Super. 2011) (unpublished memorandum). Mayo did

not seek allowance of appeal with the Pennsylvania Supreme Court.

      In August 2011, Mayo filed his first PCRA Petition, which the PCRA court

denied. This Court affirmed the PCRA court’s denial, and the Pennsylvania

Supreme Court denied allowance of appeal. See Commonwealth v. Mayo,

81 A.3d 1001 (Pa. Super. 2013) (unpublished memorandum), appeal

denied, 85 A.3d 483 (Pa. 2014).

      Mayo filed a second PCRA Petition in October 2016, and the PCRA court

dismissed it as untimely. This Court dismissed Mayo’s appeal for failure to file

a brief.

      On October 31, 2017, Mayo filed the instant Petition for writ of habeas

corpus ad subjiciendum, his third PCRA Petition. The PCRA court dismissed

the Petition. Mayo filed a timely appeal.

      This Court’s standard of review regarding a PCRA court’s dismissal of a

PCRA petition is whether the PCRA court’s decision is supported by the

evidence of record and is free of legal error. Commonwealth v. Garcia, 23

A.3d 1059, 1061 (Pa. Super. 2011).

      Initially, all PCRA petitions, including second or subsequent petitions,

must be filed within one year of the defendant’s judgment of sentence

becoming final. See 42 Pa.C.S.A. § 9545(b)(1).      “A judgment becomes final


                                     -2-
J-S28040-18


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 time for seeking review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

       In this case, Mayo’s judgment of sentence became final on June 23,

2011, after the time to seek review with the Pennsylvania Supreme Court had

expired. See Pa.R.A.P. 1113(a). Accordingly, Mayo had until June 25, 2012,

to file a timely PCRA petition.2 See 42 Pa.C.S.A. § 9545(b)(1). Thus, Mayo’s

October 2017 Petition is facially untimely under the PCRA.

       However, Pennsylvania courts may consider an untimely PCRA petition

where the defendant can explicitly plead and prove one of three exceptions:

       (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 have been
                 ascertained by the exercise of due diligence; or


____________________________________________


2 One year from the date Mayo’s judgment became final was June 23, 2012,
which falls on a Saturday. See 1 Pa.C.S.A. § 1908 (stating that if the last day
of an appeal period falls on a Saturday or Sunday, such day(s) shall be omitted
from the computation). Thus, a timely PCRA Petition must have been filed on
or before June 25, 2012.


                                           -3-
J-S28040-18


      (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.

42 Pa.C.S.A. § 9545(b)(1).

      Here, Mayo does not plead or prove any of the above exceptions.3

Accordingly, the PCRA court properly dismissed the Petition.4

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/19/2018




_______________
3 Mayo’s request for relief due to ineffective assistance of counsel does not

implicate any of the timeliness exceptions.         See Commonwealth v.
Breakiron, 781 A.2d 94, 100 (Pa. 2001) (rejecting “attempts to utilize
ineffective assistance of counsel claims as a means of escaping the
jurisdictional time requirements for filing a PCRA petition.”).

4 Mayo’s contention that the PCRA court erred by failing to provide notice
pursuant to Pa.R.Crim.P. 907(1) is without merit. See Commonwealth v.
Zeigler, 148 A.3d 849, 851 n.2 (Pa. Super. 2016) (stating that “failure to
issue Rule 907 notice is not reversible error where the record is clear that the
petition is untimely.”).




                                     -4-
