J-S88006-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AUGUSTUS ANTHONY SIMMONS,
Appellant No. 675 EDA 2016
Appeal from the PCRA Order of February 12, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP- 46 -CR- 0005175 -2011
BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: Filed January 17, 2017
Appellant, Augustus Anthony Simmons, appeals pro se from the order
entered on February 12, 2016, which dismissed his second petition filed
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. We affirm.
A prior panel of this Court explained the facts and procedural posture
underlying Appellant's guilty plea, sentence, and first PCRA petition:
On March 8, 2012, Appellant entered into negotiated
a
guilty plea[, wherein Appellant pleaded guilty to a number
of charges, including conspiracy to commit murder and
conspiracy to commit arson. That day,] the trial court
imposed the agreed -upon sentence of 25 to 50 years'
imprisonment. Appellant filed neither a post[ -]sentence
motion nor a direct appeal. Instead, on January 2, 2013,
Appellant . filed a timely PCRA petition[,] raising claims
. .
of plea counsel's ineffectiveness. Counsel was appointed.
On April 22, 2013, PCRA counsel filed a no -merit letter and
request to withdraw as counsel[, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
*Retired Senior Judge assigned to Superior Court.
J-S88006-16
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc)]. After reviewing counsel's no -merit letter,
the PCRA court issued a notice, pursuant to [Pennsylvania
Rule of Criminal Procedure 907,] of its intent to dismiss
Appellant's petition without a hearing. On June 18,
. . .
2014, the PCRA court granted PCRA counsel's petition to
withdraw[] and dismissed Appellant's PCRA [petition].
Commonwealth v. Simmons, 122 A.3d 1129 (Pa. Super. 2015)
(unpublished memorandum) at 1 -2 (some internal capitalization omitted),
appeal denied, 125 A.3d 1201 (Pa. 2015).
On June 11, 2015, this Court affirmed the dismissal of Appellant's first
PCRA petition and, on October 14, 2015, the Pennsylvania Supreme Court
denied Appellant's petition for allowance of appeal. Id.
On December 14, 2015, Appellant filed the current PCRA petition -
which is Appellant's second petition for post- conviction collateral relief.
Within Appellant's second PCRA petition, Appellant neither acknowledged
that his petition was untimely nor pleaded a statutory exception to the
PCRA's one -year time -bar. See Appellant's Second PCRA Petition, 12/14/15,
at 1 -15 and "Memorandum of Law to Support Second Petition for Post -
Conviction Relief."
The PCRA court dismissed Appellant's second PCRA petition on
February 12, 2016 and Appellant filed a timely notice of appeal to this Court.
We now affirm the dismissal of Appellant's patently untimely, serial PCRA
petition.
The PCRA contains a jurisdictional time -bar, which is subject to limited
statutory exceptions. This time -bar demands that "any PCRA petition,
-2
J-S88006-16
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner's judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable." Commonwealth v. McKeever,
947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time -bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that "given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner "); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475 -476 (Pa. 2003).
In the case at bar, since Appellant did not file a direct appeal from his
judgment of sentence, his judgment of sentence became final at the end of
the day on April 7, 2012, which was 30 days after Appellant was sentenced
-3-
J-S88006-16
in open court and the time for filing a direct appeal to this Court expired. 42
Pa.C.S.A. § 9545(b)(3) ( "A judgment becomes final at the conclusion of
direct review, including discretionary review in the Supreme Court of the
United States ... , or at the expiration of time for seeking the review "); see
also Pa.R.A.P. 903(a). The PCRA explicitly requires that a petition be filed
"within one year of the date the judgment becomes final[.]" 42 Pa.C.S.A.
§ 9545(b)(1). Therefore, Appellant had until April 7, 2013 to file a timely
PCRA petition. 42 Pa.C.S.A. § 9545(b)(1). As Appellant did not file his
current petition until December 14, 2015, the current petition is manifestly
untimely and the burden thus fell upon Appellant to plead and prove that
one of the enumerated exceptions to the one -year time -bar applied to his
case. See 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d
1284, 1286 (Pa. Super. 2008) (to properly invoke a statutory exception to
the one -year time -bar, the PCRA demands that the petitioner properly plead
and prove all required elements of the relied -upon exception).
Appellant did not attempt to plead any exception to the PCRA's one -
year time -bar. Thus, Appellant's petition is time -barred and our "courts are
without jurisdiction to offer [Appellant] any form of relief." Commonwealth
v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the
PCRA court's order dismissing Appellant's second PCRA petition.
Appellant's "Motion to Stay and Abeyance" denied. Order affirmed.
Jurisdiction relinquished.
-4
J-S88006-16
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 1/17/2017
-5