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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANK WINN,
Appellant No. 417 EDA 2016
Appeal from the PCRA Order January 4, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.: CP-51-CR-0511411-2004
CP-51-CR-0600011-2004
CP-51-CR-0904141-2004
BEFORE: SHOGAN, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 28, 2017
Appellant, Frank Winn, appeals from the January 4, 2016 order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the factual and procedural history in this matter from our
review of the certified record and the trial court’s September 21, 2016
opinion. On May 16, 2005, Appellant pleaded guilty to attempted murder,
robbery, person not to possess a firearm, and criminal conspiracy.1 On the
same date, the trial court sentenced Appellant to not less than fifteen nor
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2501, 901, 3701(a), 6105(a), and 903, respectively.
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more than thirty years of incarceration. (See Trial Court Opinion, 9/21/16,
at 1).
On April 24, 2014, Appellant filed a pro se PCRA petition. The court
appointed counsel, who filed an amended PCRA petition on November 10,
2014. On November 19, 2015, the court gave notice of its intent to dismiss
the petition because it was untimely filed and did not invoke an exception to
the PCRA timeliness requirements. See Pa.R.Crim.P. 907(1). On January 4,
2016, the PCRA court dismissed Appellant’s petition as untimely. This timely
appeal followed.2
Appellant raises the following issue on appeal: “May an illegal sentence
be challenged at any time under the PCRA?” (Appellant’s Brief, at 7).
We begin by addressing the timeliness of Appellant’s instant PCRA
petition.
Crucial to the determination of any PCRA appeal is the timeliness
of the underlying petition. Thus, we must first determine
whether the instant PCRA petition was timely filed. The
timeliness requirement for PCRA petitions is mandatory and
jurisdictional in nature, and the court may not ignore it in order
to reach the merits of the petition. The question of whether a
petition is timely raises a question of law. Where the petitioner
raises questions of law, our standard of review is de novo and
our scope of review plenary.
____________________________________________
2
Pursuant to the court’s order, Appellant filed a statement of errors
complained of on appeal on February 17, 2016. See Pa.R.A.P. 1925(b).
The court entered its opinion on September 21, 2016. See Pa.R.A.P.
1925(a).
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A PCRA petition is timely if it is “filed within one year of the
date the judgment [of sentence] becomes final.” 42 Pa.C.S.A. §
9545(b)(1). “[A] judgment [of sentence] 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.” 42 Pa.C.S.A. § 9545(b)(3). . . .
Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (case
citations and some quotation marks omitted).
Here, Appellant’s judgment of sentence became final on June 15,
2005, thirty days after the trial court imposed sentence, and Appellant did
not appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).
Appellant therefore had until June 15, 2006, to file a timely PCRA petition.
See Pa.C.S.A. § 9545(b)(1). He filed the instant petition on April 24, 2014.
Thus, it is patently untimely.
An untimely PCRA petition may be considered if one of the following
three exceptions applies:
(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); see Brown, supra at 500. If an
exception applies, a petitioner must file the PCRA petition “within [sixty]
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days of the date the claim could have been presented.” 42 Pa.C.S.A. §
9545(b)(2). “[Our Supreme] Court has repeatedly stated it is the
appellant’s burden to allege and prove that one of the timeliness exceptions
applies.” Commonwealth v. Hawkins, 953 A.2d 1248, 1253 (Pa. 2008)
(citation omitted).
Here, Appellant has failed to invoke the applicability of any of the
timeliness exceptions to the PCRA time bar. (See Appellant’s Brief, at 10-
12). He attempts to argue that the petition is timely because a challenge to
the legality of a “sentence can be raised at any time[.]” (Id. at 10).
However, “[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.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999) (citation omitted). Accordingly, because Appellant failed to meet his
burden to prove that one of the timeliness exceptions applies, we conclude
that his petition is untimely and the trial court lacked jurisdiction to consider
his claim. See Hawkins, supra at 1253; (Trial Ct. Op., at 4). Thus, we
affirm the order of the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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