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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KENNETH A. CARSON,
Appellant No. 1624 WDA 2016
Appeal from the PCRA Order September 30, 2016
in the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0002858-2012
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 15, 2017
Appellant, Kenneth A. Carson, appeals pro se from the September 30,
2016 order dismissing his third 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. On March 5, 2013, Appellant entered a
counseled, nolo contendere plea to possession of a controlled substance and
possession of drug paraphernalia.1 (See N.T. Plea Hearing, 3/05/13, at 10-
11). On May 2, 2013, the trial court imposed a sentence of not less than
eighteen nor more than thirty-six months of incarceration in a state
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(16), and 35 P.S. § 780-113(a)(32), respectively.
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correctional institution for possession of a controlled substance, and not less
than six nor more than twelve months for possession of drug paraphernalia.
(See N.T. Sentencing, 5/02/13, at 42-43). The sentences imposed were to
run consecutively to each other and to another sentence for an unrelated
conviction for indecent assault. (See id.) Appellant did not file post-
sentence motions or a direct appeal.
On September 3, 2013, Appellant timely filed his first PCRA petition
pro se. Court-appointed counsel filed a Turner/Finley2 “no merit” letter
and petition to withdraw. On December 19, 2013, the PCRA court granted
counsel’s petition to withdraw and issued a Rule 907 notice of its intent to
dismiss Appellant’s petition, and dismissed it on February 24, 2014. See
Pa.R.Crim.P. 907(1). This Court affirmed on October 8, 2014. (See
Commonwealth v. Carson, 108 A.3d 108 (Pa. Super. 2014) (unpublished
memorandum)).
On July 17, 2015, Appellant filed his second PCRA petition pro se. On
October 2, 2015, following proper notice, the PCRA court dismissed
Appellant’s petition as untimely filed. Appellant did not appeal.
____________________________________________
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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On September 1, 2016, Appellant filed the instant pro se PCRA
petition, his third.3 The PCRA court gave notice of its intent to dismiss the
petition as untimely on September 6, 2016, and dismissed it on September
30, 2016. This timely appeal followed.4
Appellant raises the following issues for our review:
A. Whether Count (1) and Count (3) should have merged for
sentencing?
B. Whether Appellant suffered prejudice because of counsel’s
ineffectiveness in failure to motion fo[r] the dismissal of
indictment or information on double jeopardy grounds?
C. Whether the [c]ourt erred when they [sic] did not explain
[A]ppellant his rights to set up payment plans before sanctions
were imposed?
(Appellant’s Brief, at 2).
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination, and
whether the PCRA court’s determination is free of legal error.
The PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations
omitted).
We begin by addressing the timeless of Appellant’s petition.
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3
Although Appellant styled his filing as a “judicial supplemental relief from
a[n] illegal sentence/sanctions,” the PCRA court properly treated it as a
PCRA petition. See 42 Pa.C.S.A. § 9542.
4
Pursuant to the court’s order, Appellant filed a concise statement of errors
complained of on appeal on November 9, 2016. See Pa.R.A.P. 1925(b).
The PCRA court filed an opinion on November 14, 2016. See Pa.R.A.P.
1925(a).
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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 is plenary.
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, 499-500 (Pa. Super. 2016)
(case citations and some quotation marks omitted).
Here, Appellant’s judgment of sentence became final on June 2, 2013,
thirty days after the trial court imposed the judgment of sentence, and
Appellant did not appeal to this Court. See 42 Pa.C.S.A. § 9545(b)(3);
Pa.R.A.P. 903(a). Therefore, Appellant had until June 2, 2014, to file a
timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant
filed the instant petition on September 1, 2016, it is untimely on its face.
Section 9545(b) of the PCRA provides three exceptions that allow for
review of an untimely PCRA petition:
(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;
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(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.
Id. When a petition is filed outside the one-year time limit, a petitioner
must plead and prove the applicability of one of the three exceptions to the
PCRA timeliness requirements. See Commonwealth v. Johnston, 42 A.3d
1120, 1126 (Pa. Super. 2012). Further, a PCRA petition invoking one of
these statutory exceptions must “be filed within [sixty] days of the date the
claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
Here, Appellant failed to invoke the applicability of any of the
timeliness exceptions to the PCRA time-bar. (See Appellant’s Brief, at 4-6).
He argues that the petition is timely because a challenge to the legality of a
sentence “may be entertained at any time[.]” (Id. at 4). 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). Because Appellant failed to meet his burden to plead and prove
that one of the timeliness exceptions applies, we conclude that his petition is
untimely and the PCRA court properly found that it lacked jurisdiction to
consider the merits of his claims. See Johnston, supra at 1126.
Accordingly, we affirm the order of the PCRA court.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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