Opinion
J-S40044-13
08-07-2013
COMMONWEALTH OF PENNSYLVANIA Appellee v. PHILLIP ANTHONY CLARK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 14, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002631-2009
BEFORE: GANTMAN, J., OTT, J., and PLATT, J. JUDGMENT ORDER BY GANTMAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Phillip Anthony Clark, appeals pro se from the order of the Erie County Court of Common Pleas that dismissed his serial petition, filed under the Post Conviction Relief Act ("PCRA"). On July 13, 2010, a jury convicted Appellant of persons not to possess firearms, possession of a controlled substance with intent to deliver, possession of a controlled substance and possession of drug paraphernalia. On November 3, 2010, the court sentenced Appellant to an aggregate term of four (4) to eight (8) years' imprisonment. Appellant did not pursue a direct appeal. Since then, Appellant has filed two petitions for collateral relief, both of which the PCRA court denied. On November 21, 2012, Appellant filed pro se the current PCRA petition, challenging the legality of his sentence. The PCRA court denied Appellant relief and dismissed the petition as untimely on February 14, 2013. Appellant timely filed a pro se notice of appeal on February 25, 2013. The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 12, 2013, and Appellant timely complied.
The record indicates the court did not give Appellant notice of its intent to dismiss the current PCRA petition without a hearing, pursuant to Pa.R.Crim.P. 907. Appellant, however, has not challenged the absence of the Rule 907 notice on appeal, which constitutes waiver of that claim. See Commonwealth v. Boyd, 923 A.2d 513, 514 n. 1 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). Moreover, even if the issue had been raised, it does not automatically warrant remand if the petition is unquestionably untimely. See Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000). See also Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013) (stating same).
The timeliness of a PCRA petition is a jurisdictional requisite; "Jurisdictional time limits go to a court's right or competency to adjudicate a controversy." Commonwealth v. Hackett, 598 Pa. 350, 359, 956 A.2d 978, 983 (2008), cert. denied, 528 U.S. 1163, 120 S.Ct. 1178, 145 L.Ed.2d 1086 (2000). A PCRA petition must be filed within one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed final "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." 42 Pa.C.S.A. § 9545(b)(3). Instantly, Appellant's judgment of sentence became final on December 3, 2010, thirty days after the court imposed sentence, and the period to file a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903. Appellant filed the current PCRA petition on November 21, 2012, nearly two years after his judgment of sentence became final. Although Appellant checked the boxes on a pre-printed form next to each exception to the PCRA's timeliness requirement, Appellant failed to plead and prove facts to support the exceptions. See 42 Pa.C.S.A. § 9545(b)(1) (delineating narrow exceptions to PCRA's timeliness requirements); Commonwealth v. Blackwell, 936 A.2d 497, 500 (Pa.Super. 2007) (explaining mere checking of box on PCRA petition to invoke exception to timeliness requirements, without further discussion, contravenes petitioner's burden to plead and prove timeliness exception applies). Thus, the court properly dismissed the petition as untimely.
Appellant's claim, that a challenge to the legality of his sentence is a non-waivable issue, affords him no relief. See, e.g., Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (explaining challenge to legality of sentence is cognizable under PCRA, but petitioner must first satisfy PCRA's time limits or its exception(s) to invoke court's jurisdiction).
In his Rule 1925(b) statement Appellant included only two of the four issues he now raises on appeal; thus, the issues not listed in the Rule 1925(b) statement are waived. See Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (holding issues not raised in Rule 1925(b) statement will be deemed waived on appeal).
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Order affirmed. Judgement Entered. ______________________
Deputy Prothonotary