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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAJUAN SAUNDERS, : No. 1104 MDA 2015
:
Appellant :
Appeal from the PCRA Order, May 26, 2015,
in the Court of Common Pleas of Lackawanna County
Criminal Division at No. CP-35-CR-0001456-2011
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 15, 2016
Dajuan Saunders appeals, pro se, from the May 26, 2015 order
dismissing his third petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court set forth the following procedural history:
On October 28, 2011, [appellant] pled guilty to
one count of driving under the influence of
alcohol,[1] and in exchange the other charge pending
against [appellant] was nolle prossed. These
charges arose on November 20, 2010 when the
police conducted a traffic stop and found that
[appellant] was driving under the influence of
alcohol. Also on October 28, 2011, [appellant] was
sentenced to one to five years. [Appellant] served
the court with a pro se motion for reconsideration of
sentence which was denied on November 3, 2011.
* Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S.A. § 3802.
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[Appellant] was represented by David Cherundolo,
Esq.
On January 5, 2012, [appellant] filed a Petition
for Post Conviction Collateral Relief. Kurt Lynott,
Esq. was appointed to represent [appellant]. On
November 6, 2012, Mr. Lynott filed a Motion to
Withdraw as Counsel Pursuant to a Turner-Finley
Letter. On January 15, 2013, his motion was
granted. Also on January 15, 2013, this court issued
a Notice of Intent to Dismiss and on February 14,
2013, dismissed the petition.
On August 14, 2013, [appellant] filed his
second PCRA petition. On October 29, 2013, this
court issued a Notice of Intent to Dismiss and on
December 12, 2013, dismissed the petition.
On February 19, 2015, [appellant] filed his
third PCRA petition. On April 14, 2015, this court
issued a Notice of Intent to Dismiss and on May 26,
2015, dismissed the petition.
On June 25, 2015, [appellant] filed a Notice of
Appeal and a concise statement of the matters
complained of on appeal. The reasons for the
dismissal of [appellant’s] PCRA petition can be found
in this court’s April 14, 2015 Memorandum and
Notice of Intent to Dismiss.
Trial court opinion, 8/20/15 at 1-2.
Appellant raises the following issues for our review:
A. WHETHER THE P.C.R.A. COURT ERRED IN
FINDING THAT APPELLANT’S P.C.R.A. WAS
UNTIMELY FILED PURSUANT TO 42 PA. C.S.A.
§ [9545](b)(1)(i)?
B. WHETHER THE P.C.R.A. COURT ERRED IN
FINDING THAT APPELLANT’S P.C.R.A. WAS
UNTIMELY FILED PURSUANT TO 42 PA. C.S.A.
§ [9545](b)(1)(ii)?
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C. WHETHER THE P.C.R.A COURT DENIED
APPELLANT THE RIGHT TO RAISE HIS TIMELY
FILED P.C.R.A[.] ON NOT HAVING A DRUG
AND ALCOHOL EVALUATION BY REFUSING TO
ANSWER THE PETITION AND ENTER AN ORDER
PURSUANT TO PA. R. CRIM. P. 907(4)?
D. WHETHER THE PLEA COURT HAD SUBJECT
MATER [SIC] JURISDICTION TO ACCEPT
APPELLANT’S GUILTY PLEA?
Appellant’s brief at 4.
Subsequent PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:
A second or subsequent petition for post-conviction
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. Allen, 557 Pa. 135, 141, 732
A.2d 582, 586 (1999). A prima facie showing of
entitlement to relief is made only by demonstrating
either that the proceedings which resulted in
conviction were so unfair that a miscarriage of
justice occurred which no civilized society could
tolerate, or the defendant’s innocence of the crimes
for which he was charged. Allen, at 142, 732 A.2d
at 586. Our standard of review for an order denying
post-conviction relief is limited to whether the trial
court’s determination is supported by evidence of
record and whether it is free of legal error.
Commonwealth v. Jermyn, 551 Pa. 96, 709 A.2d
849, 856 (1998).
A PCRA petition, including a second or subsequent
petition, must be filed within one year of the date
that judgment of sentence becomes final. 42 Pa.C.S.
§ 9545(b)(1). A judgment becomes final for
purposes of the PCRA “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
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of time for seeking the review.” 42 Pa.C.S.
§ 9545(b)(3). PCRA time limits are jurisdictional in
nature, implicating a court’s very power to
adjudicate a controversy. Commonwealth v. Fahy,
558 Pa. 313, 737 A.2d 214 (1999). Accordingly, 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, i.e., by operation of
one of the statutorily enumerated exceptions to the
PCRA time-bar. Id. at 329, 737 A.2d at 222.
Commonwealth v. Ali, 86 A.3d 173, 176-177 (Pa. 2014), cert. denied,
135 S.Ct. 707 (2014).
Here, the trial court sentenced appellant on October 28, 2011.
Appellant failed to file a direct appeal to this court, and consequently,
appellant’s judgment of sentence became final 30 days after imposition of
sentence and the time for filing a direct appeal expired. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 903; Commonwealth v. Cintora, 69 A.3d 759,
763 (Pa.Super. 2013). Therefore, appellant’s petition, filed February 19,
2015, is facially untimely. As a result, the PCRA court lacked jurisdiction to
review appellant’s petition, unless appellant alleged and proved one of the
statutory exceptions to the time bar, as set forth in 42 Pa.C.S.A.
§ 9545(b)(1).
Those three narrow exceptions to the one-year time bar are: when
the government has interfered with the appellant’s ability to present the
claim, when the appellant has recently discovered facts upon which his PCRA
claim is predicated, or when either the Pennsylvania Supreme Court or the
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United States Supreme Court has recognized a new constitutional right and
made that right retroactive. 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).
The appellant bears the burden of pleading and proving the applicability of
any exception. 42 Pa.C.S.A. § 9545(b)(1). If an appellant fails to invoke a
valid exception to the PCRA time bar, this court may not review the petition.
See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Additionally, a petitioner must show, among other things, that the
claims of error have not been previously litigated. 42 Pa.C.S.A. § 9543(a);
Commonwealth v. Blakeney, 108 A.3d 739, 749 (Pa. 2014). An issue has
been previously litigated if “it has been raised and decided in a proceeding
collaterally attacking the conviction or sentence.” 42 Pa.C.S.A.
§ 9544(a)(3).
Here, appellant attempts to circumvent the PCRA time bar by
complaining that the newly discovered fact and government interference
exceptions apply under §§ 9545(b)(i) & (ii). Specifically, he contends that
the government interfered with his receipt of the criminal complaint filed
against him before his preliminary hearing and that its contents constitute
new facts not known to him prior to his pleading guilty and prior to the filing
of his previous PCRA petitions. He further complains that because he did not
receive the criminal complaint, the trial court lacked jurisdiction over him
when he entered his guilty plea. (Appellant’s brief in passim.)
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Contrary to appellant’s assertions, the record reflects that appellant
raised the issue that he did not receive a copy of the criminal complaint filed
against him in his first PCRA petition filed on January 5, 2012. (Docket
#14.) The record further reflects that the trial court addressed that claim in
its Memorandum and Notice of Intent to Dismiss. (Docket #23.) The trial
court then dismissed appellant’s petition. (Docket #26.) Appellant failed to
seek review by this court. Therefore, this claim has been previously
litigated, and we will not address it further.
Appellant finally complains that his sentence is illegal because he was
required to undergo a drug and alcohol evaluation before sentencing.
(Appellant’s brief at 7, 19-23).
Challenges to the legality of the sentence are never waived.
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super 2005). This
means that 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. Id.
Here, although appellant asserts that his sentence is illegal because he
was required to undergo a drug and alcohol evaluation before sentencing, he
fails to advance any argument as to how his claim comes within any
exception to the PCRA time bar. Stated differently, appellant has failed to
bear his burden of pleading and proving the applicability of any exception.
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Having determined that appellant’s petition, his third, is manifestly
untimely and that no exception to the PCRA’s one-year jurisdictional time
bar applies, we will affirm the PCRA court’s order dismissing the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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