J-S66028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RANEESHA NICOLE EVANS

                            Appellant                  No. 676 WDA 2015


              Appeal from the PCRA Order entered April 16, 2015
                 In the Court of Common Pleas of Erie County
               Criminal Division at No: CP-25-CR-0001505-2009


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 19, 2016

        Appellant, Raneesha Nicole Evans, appeals pro se from the April 16,

2015 order entered in the Court of Common Pleas of Erie County, denying as

untimely her second petition for collateral relief filed pursuant to the Post

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

review, we affirm.

        In its notice of intent to dismiss Appellant’s petition, the PCRA court

provided the following summary of the facts and procedural history of the

case:

        After a jury trial, [Appellant] was found guilty in absentia of six
        counts of possession with intent to deliver, criminal conspiracy,
        six counts of possession, and one count of possession of
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*
    Retired Senior Judge assigned to the Superior Court.
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        paraphernalia. On April 29, 2010, [Appellant] was sentenced in
        absentia to an aggregate term of 5 to 10 years’ imprisonment.
        On June 1, 2010, after the [c]ourt granted the Commonwealth’s
        motion to reconsider, the [c]ourt amended [Appellant’s]
        sentence to impose an aggregate term of 8 to 16 years’
        imprisonment.      [Appellant] filed a direct appeal and on
        November 29, 2011, the Superior Court affirmed her judgment
        of sentence. Commonwealth v. Evans, 718 WDA 2011 (Pa.
        Super., filed Nov. 29, 2011) (unpublished memorandum).

        On February 9, 2012, [Appellant] filed her first PCRA petition
        alleging, inter alia, that she was improperly denied the benefit of
        RRRI1 sentences.         On July 5, 2012, the [c]ourt dismissed
        [Appellant’s] PCRA petition. [Appellant] filed an appeal, and on
        April 3, 2013, the Superior Court dismissed her appeal.
        Commonwealth v. Evans, 143 WDA 2012 (Pa. Super., filed
        April 5, 2013) (unpublished memorandum).

        On February 18, 2015, [Appellant] filed a “Petition for
        Resentencing [u]nder Act 81 RRRI”, which [the court] treated as
        a second PCRA petition.

Notice of Intent to Dismiss, 3/25/15, at 1-2 (footnote omitted).

        Appellant filed a timely response to the notice, arguing her petition

raised a non-waivable legality of sentence claim.        On April 16, 2015, the

PCRA court dismissed Appellant’s petition. Appellant timely filed an appeal

and complied with the PCRA court’s directive to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 19, 2015,

the PCRA court issued its 1925(a) opinion, incorporating by reference the

March 25 notice of intent to dismiss.            In that notice, the PCRA court

concluded that Appellant’s PCRA petition was untimely filed more than a year

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1
    “Recidivism risk reduction incentive.” See 61 Pa.C.S.A. § 4501 et seq.



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after her judgment was final and that Appellant failed to allege any facts to

satisfy an exception to the PCRA’s time bar.2      Notice of Intent to Dismiss,

3/25/15, at 2-3 (citing 42 Pa.C.S.A. § 9545(b)(1)).

       In her brief filed with this Court, Appellant restates the same two

issues raised in her 1925(b) statement.

       I.     Did the [l]ower [c]ourt err when it failed to apply the RRRI
              to [A]ppellant’s sentence on April 29, 2010, when the
              Supreme Court ruled that the sentencing court must apply
              RRRI when a defendant is eligible?

       II.    Did the [l]ower [c]ourt err by denying [A]ppellant[’]s
              challenges to the legality of her sentence, when RRRI is
              one of the CLEAR issues under challenges to the legality of
              sentence and can never be waived?

Appellant’s Brief at 4 (emphasis in original).
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2
  To qualify for an exception to the PCRA timeliness requirements, a PCRA
petition must allege, and the petitioner must prove, 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 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.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).




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      As reflected above, the PCRA court treated Appellant’s petition as a

second   PCRA    petition   and   denied      the   petition   as   untimely.   In

Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014), this Court

reiterated:

      “In reviewing the denial of PCRA relief, we examine whether the
      PCRA court’s determination is supported by the record and free
      of legal error.” Commonwealth v. Fears, [86 A.3d 795, 803
      (Pa. 2014)] (internal quotation marks and citation omitted).
      “The scope of review is limited to the findings of the PCRA court
      and the evidence of record, viewed in the light most favorable to
      the prevailing party at the trial level.” Commonwealth v.
      Spotz, [84 A.3d 294, 311 (Pa. 2014)] (citation omitted). “It is
      well-settled that a PCRA court’s credibility determinations are
      binding upon an appellate court so long as they are supported by
      the record.” Commonwealth v. Robinson, [82 A.3d 998, 1013
      (Pa. 2013)] (citation omitted). However, this Court reviews the
      PCRA court’s legal conclusions de novo. Commonwealth v.
      Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Id. at 992.

      Before we can consider the merits of Appellant’s issues, we must

determine if her petition was timely filed.

      Pennsylvania law makes clear that when “a PCRA petition is
      untimely, neither this Court nor the trial court has jurisdiction
      over the petition.” Commonwealth v. Seskey, 86 A.3d 237,
      241 (Pa. Super. 2014) (citation omitted). The “period for filing a
      PCRA petition is not subject to the doctrine of equitable tolling;
      instead, the time for filing a PCRA petition can be extended only
      if the PCRA permits it to be extended[.]” Commonwealth v.
      Ali, [86 A.3d 173, 177 (Pa. 2014)] (internal quotation marks
      and citation omitted). This is to “accord finality to the collateral
      review process.” Commonwealth v. Watts, 611 Pa. 80, 23
      A.3d 980, 983 (2011) (citation omitted).

Id. at 992-93.


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       In this case, Appellant’s judgment of sentence was final on December

29, 2011. Therefore, in accordance with 42 Pa.C.S.A. § 9545(b)(1), absent

a recognized exception, Appellant had until December 31, 20123 to file a

petition, including a second or subsequent petition. Appellant’s petition, filed

in February 2015, more than two years beyond the deadline, is untimely on

its face. Because the petition was untimely filed and because Appellant did

not plead or prove any exception to the PCRA’s timeliness requirements, the

PCRA court was without jurisdiction to consider the petition.       Id. at 992;

Commonwealth v. Hernandez, 79 A.3d 649, 654-55 (Pa. Super. 2013).

       Appellant does not acknowledge the time limitations of the PCRA or

the PCRA court’s lack of jurisdiction over untimely petitions.     Instead, she

contends that her claim is an illegality of sentence claim that cannot be

waived. It is true that a challenge to the legality of a sentence cannot be

waived on appeal. See, e.g., Commonwealth v. Newman, 99 A.3d 86, 90

(Pa. Super. 2014). In Miller, this Court recognized:

       It is generally true that “this Court is endowed with the ability to
       consider an issue of illegality of sentence sua sponte.”
       Commonwealth v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.
       Super. 2014) (citation omitted). However, in order for this Court
       to review a legality of sentence claim, there must be a basis for
       our jurisdiction to engage in such review. See Commonwealth
       v. Borovichka, 18 A.3d 1242, 1254 (Pa. Super. 2011) (stating,
       “[a] challenge to the legality of a sentence . . . may be
       entertained as long as the reviewing court has jurisdiction[ ]”)
       (citation omitted). As this Court recently noted, “[t]hough not
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3
    December 29, 2012 was a Saturday.



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      technically waivable, a legality [of sentence] claim may
      nevertheless be lost should it be raised . . . in an untimely PCRA
      petition for which no time-bar exception applies, thus depriving
      the court of jurisdiction over the claim.” [Commonwealth v.
      Seskey, 86 A.3d 237, 242 (Pa. Super. 2014)]. As a result, the
      PCRA court lacked jurisdiction to consider the merits of
      Appellant’s second PCRA petition, as it was untimely filed and no
      exception was proven.

Miller, 102 A.3d at 995-96 (citations omitted).

      The PCRA court denied Appellant’s petition as untimely and determined

it lacked jurisdiction to consider it. We find the PCRA court’s determinations

are supported by the record and free of legal error. Further, even though a

legality of sentence claim can be considered sua sponte by this Court under

some circumstances, it cannot be considered if this Court lacks jurisdiction

over the claim. See Newman, supra; Miller, supra. Because Appellant’s

petition was untimely, this Court lacks jurisdiction over it and cannot

consider the merits, if any, of Appellant’s claims. Therefore, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/19/2016




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