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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SAMAD TAUFEEQ ROBINSON
Appellant No. 1903 WDA 2015
Appeal from the PCRA Order November 24, 2015
in the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0001777-2008
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 12, 2016
Appellant, Samad Taufeeq Robinson, appeals pro se from the order of
the Erie County Court of Common Pleas, denying his second Post Conviction
Relief Act1 (“PCRA”) petition. Appellant claims the court imposed an unduly
harsh and manifestly excessive sentence that violates the fundamental
norms underlying the sentencing code. He contends he is serving an illegal
sentence. We affirm.
On January 6, 2009, Appellant pleaded guilty to count 3, persons not
to possess, use, manufacture, control, sell or transfer firearms2 and count 4,
the manufacture, delivery, or possession with intent to manufacture or
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
18 Pa.C.S. § 6105(a)(1).
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deliver, a controlled substance.3 On March 2, 2009, he was sentenced to 12
to 24 months’ imprisonment for persons not to possess firearms consecutive
to his sentence of 36 months to 72 months’ imprisonment for possession
with intent to deliver. Appellant did not file post-sentence motions or a
direct appeal.4 On January 6, 2010, Appellant filed a pro se PCRA petition.
Counsel was appointed and filed a “no merit letter.” On March 1, 2010, the
court denied the PCRA petition.
On October 29, 2015, pro se Appellant filed his second PCRA petition.
On November 3, 2015, the PCRA court filed it notice of intent to dismiss the
petition pursuant to Pa.R.Crim.P. 907. Appellant filed a notice of appeal on
November 9, 2015.5 On November 24, 2015, the PCRA court denied the
PCRA petition.
3
35 Pa.S. § 780-113(A)(30).
4
Appellant’s judgment of sentence became final on April 1, 2009. See 42
Pa.C.S. § 9545(b)(3) (providing “a judgment becomes 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 the review[ ]”). Appellant had until April 1, 2010, to file his
PCRA petition. See 42 Pa.C.S. § 9545(b)(1) (providing PCRA petition must
be filed within one year of date judgment becomes final). Therefore,
because he filed his PCRA petition on October 29, 2015, his petition is
facially untimely.
5
Although Appellant's notice of appeal was premature when filed, we will
regard this appeal as timely. See Pa.R.A.P. 905(a)(5) (“A notice of appeal
filed after the announcement of a determination but before the entry of an
appealable order shall be treated as filed after such entry and on the day
thereof.”); see also Commonwealth v. Swartzfager, 59 A.3d 616, 618 n.
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Appellant raises the following issues for our review, reproduced
verbatim:
1. Appellant is appealing the order of the court dated
November 2nd 2015 in which denied Appellant PCRA
Petition. . ,
2. Appellant is appealing the fact that this court indicated
that defendant’s sentencing issue’s is meritless. . ,
3. Appellant is appealing the fact that he is serving an
illegal sentence and an illegal sentence issue is
nonwaiveable. . ,
4. Appellant is appealing the fact that Judge Connelly lack
jurisdiction to answer appellant’s PCRA, where Judge
Garhart was appellant’s trial Judge . . ,
5. Appellant is appealing the court Order dismissing his
PCRA without conducting a hearing as required by law . . ,
6. Appellant is appealing the fact he is serving an illegal
Sentence . . ,
Appellant’s Brief at 1.
As a prefatory matter, we consider whether the instant PCRA petition
is timely. The timeliness of a PCRA petition is a threshold question that
implicates the jurisdiction of a court to consider the merits of the relief
requested. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014).
To be timely, a PCRA petition must be filed within one year
of the date that the petitioner’s judgment of sentence
became final, unless the petition alleges and the petitioner
proves one or more of the following statutory exceptions:
3 (Pa. Super. 2012) (accepting premature notice of appeal filed after entry
of Rule 907 Notice but before final order dismissing PCRA petition).
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(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. § 9545(b)(1).
We emphasize that it is the petitioner who bears the
burden to allege and prove that one of the timeliness
exceptions applies. In addition, a petition invoking any
of the timeliness exceptions must be filed within 60 days of
the date the claim first could have been presented. 42
Pa.C.S. § 9545(b)(2). A petitioner fails to satisfy the 60–
day requirement of Section 9545(b) if he or she fails to
explain why, with the exercise of due diligence, the claim
could not have been filed earlier.
Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (some
citations omitted and emphasis added).
In Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007).
this Court recognized:
[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. . . . [A]lthough 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.
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Id. at 592 (quotation marks and citations omitted).
Appellant did not plead and prove any exception to the PCRA’s
timeliness requirement. See Marshall, 947 A.2d at 719. Appellant’s
legality of the sentence claim was raised in an untimely PCRA petition, thus
depriving the court of jurisdiction over the claim. See Fowler, 930 A.2d at
592. Appellant is not entitled to relief.6 See Marshall, 947 A.2d at 719;
Fowler, 930 A.2d at 592.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2016
6
We note that the PCRA court denied the PCRA petition finding the issues
raised were meritless. “We may affirm the trial court on any ground.”
Commonwealth v. Lynch, 820 A.2d 728, 730 n.3 (Pa. Super. 2003).
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