Com. v. Cheeseboro, B. ( 2015 )

J-S33033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BARRY CHEESEBORO
Appellant No. 2431 EDA 2014
Appeal from the PCRA Order August 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0100191-1998,
CP-51-CR-0206551-1998
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, J., and LAZARUS, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED JUNE 05, 2015
For the reasons that follow, we affirm the order of the Court of
Common Pleas of Philadelphia County, dismissing Barry Cheeseboro’s
petition for writ of habeas corpus as an untimely petition filed under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”).
Cheeseboro filed a petition for writ of habeas corpus on July 29, 2013,
claiming that his sentence violated the Eighth Amendment prohibition
against cruel and unusual punishment. Such a claim constitutes a challenge
to the legality of his sentence, Commonwealth v. Seskey, 86 A.3d 237,
241 (Pa. Super. 2014), a claim which is cognizable under the PCRA.
Commonwealth v. Condordia, 97 A.3d 366, 372 (Pa. Super. 2014).
Because claims that are cognizable under the PCRA are to be pursued within
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the parameters of that statute, id., the trial court properly treated
Cheeseboro’s filing as a PCRA petition.
A PCRA petition, including a second or subsequent petition, must be
filed within one year of the date the underlying judgment of sentence
becomes final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth
v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed
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 review.” 42 Pa.C.S.A. § 9545(b)(3);
see also Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super.
2006). Here, Cheeseboro’s judgment of sentence became final no later than
November 29, 2004, upon the expiration of the ninety-day period for filing a
writ of certiorari with the United States Supreme Court. See 42 Pa.C.S.A. §
9545(b)(3); U.S.Sup.Ct.R. 13. Thus, he had one year from that date, or
until November 29, 2005, to file a timely PCRA petition. See 42 Pa.C.S.A. §
9545(b). Cheeseboro did not file the instant petition until July 29, 2013,
more than 8½ years after his judgment of sentence became final.
Accordingly, the PCRA court had no jurisdiction to entertain Cheeseboro’s
petition unless he pleaded and offered to prove one of the three statutory
exceptions to the time bar. See 42 Pa.C.S.A. § 9545(b). Cheeseboro failed
to do so. Accordingly, the PCRA court properly dismissed his petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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