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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
GREGORY MCCRAE,
Appellant No. 3530 EDA 2016
Appeal from the PCRA Order of February 23, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0400421-1997
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 14, 2017
Appellant, Gregory McCrae, appeals pro se from the order entered on
February 23, 2011, which dismissed his second petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On March 8, 1998, a jury found Appellant guilty of aggravated assault,
possession of an instrument of crime, and recklessly endangering another
person; on April 17, 1998, the trial court sentenced Appellant to serve an
aggregate term of 12 ½ to 25 years in prison for his convictions. We
affirmed Appellant’s judgment of sentence on December 1, 1999 and
Appellant did not file a petition for allowance of appeal with the Pennsylvania
Supreme Court. Commonwealth v. McCrae, 750 A.2d 371 (Pa. Super.
1999) (unpublished memorandum) at 1-8.
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On October 24, 2000, Appellant filed his first PCRA petition. Following
the appointment of counsel, the PCRA court dismissed Appellant’s PCRA
petition on April 24, 2002. PCRA Court Order, 4/24/02, at 1. We affirmed
the PCRA court’s order on May 20, 2004 and the Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on September 13,
2005. Commonwealth v. McCrae, 855 A.2d 134 (Pa. Super. 2004)
(unpublished memorandum) at 1-15, appeal denied, 882 A.2d 1005 (Pa.
2005).
On December 17, 2009, Appellant filed his second PCRA petition,
which he titled a “motion to correct illegal sentence.” Within the petition,
Appellant claimed that his sentence for aggravated assault is “illegal”
because, in fashioning the sentence, the trial court “concentrated too greatly
on the principle of revenge and protection of the public.” Appellant’s Second
PCRA Petition, 12/17/09, at 1-3. The PCRA court issued its Rule 907 notice
on November 15, 2010 and the PCRA court finally dismissed Appellant’s
PCRA petition on February 23, 2011.
On April 21, 2011, Appellant filed a third PCRA petition, wherein
Appellant claimed that he did not receive notice that the PCRA court
dismissed his second PCRA petition. On October 14, 2016, the PCRA court
concluded that Appellant “did not receive formal notice of the PCRA court’s
dismissal order dated February 23, 2011.” PCRA Court Order, 10/14/16, at
1. Therefore, the PCRA court ordered that Appellant’s right to file a notice of
appeal from the dismissal of his second PCRA petition was reinstated nunc
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pro tunc. Id. Appellant filed a timely notice of appeal on October 26, 2016.
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,
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
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subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
Appellant’s judgment of sentence became final at the end of the day
on December 31, 1999, which was 30 days after this Court affirmed
Appellant’s judgment of sentence and the time for filing a petition for
allowance of appeal with our Supreme Court expired. See 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.
1113(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).
As Appellant did not file his current petition until December 17, 2009, 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
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v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011). Therefore, we affirm the
PCRA court’s order dismissing Appellant’s second PCRA petition.1
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
____________________________________________
1
To the extent Appellant claims that his illegal sentencing claim is non-
waivable, we note that, in Commonwealth v. Fahy, our Supreme Court
held: “[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) (emphasis added).
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