Com. v. King, S ( 2014 )

J-S51038-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SELWYN D. KING, :
:
Appellant : No. 1186 MDA 2013
Appeal from the PCRA Order entered on May 30, 2013
in the Court of Common Pleas of Luzerne County,
Criminal Division, No(s): CP-40-CR-0000582-2010,
CP-40-CR-0000583-2010, CP-40-CR-0000584-2010,
CP-40-CR-0000585-2010, CP-40-CR-0000587-2010,
CP-40-CR-0000588-2010, CP-40-CR-0000589-2010,
CP-40-CR-0000590-2010, CP-40-CR-0000591-2010,
CP-40-CR-0000592-2010
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 28, 2014
for relief pursuant to the Post Conviction Relief Act. See 42 Pa.C.S.A.
§§ 9541-9546. We affirm.
On November 10, 2010, King pled guilty to six counts of delivery of
heroin and four counts of criminal conspiracy to deliver heroin.1 On
December 30, 2010, the trial court sentenced King to 82 to 164 months in
prison, and determined that he was ineligible for the Recidivism Risk
King did not file a direct appeal.
1
See 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903(a)(1).
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On May 1 2012, King, pro se nunc pro
tunc ing counsel. Following a hearing, the
On appeal, King raises the following questions for our review:
I. Is [King] RRRI eligible when he has a prior conviction in the
state of New York of [c]riminal [p]ossession of a [w]eapon[?]
II. Is [King] entitled to post-conviction collateral relief based
upon the principle of sentencing entrapment[?]
III. Is [King] entitled to relief under the PCRA for ineffective
assistance of counsel[?]
Brief for Appellant at 1.
We review an order [denying] a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA
level. This review is limited to the findings of the PCRA court
and the evidence of the record. We will not disturb a PCRA
of legal error.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
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
Id.
jurisdictional in nature and a court may not address the merits of the issues
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raised if the PCRA petition was not timely filed. Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).
Because King did not seek direct review of his judgment of sentence,
his sentence became final in January 2011, when the period of time to seek
review expired. See 42 Pa.C.S.A. § 9545(b)(3). Because King did not file
the instant PCRA Petition until May 2012, his Petition is facially untimely.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these
Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094 (Pa.
2010).
Here, King did not plead or prove any exception and, instead, raises
claims regarding his eligibility for the RRRI program, sentencing entrapment
and ineffectiveness of counsel. See Brief for Appellant at 5-10. Because
King did not successfully invoke any of the three exceptions necessary to
circumve
address the merits of his claims on appeal.2
Order affirmed.
2
al and cannot be
waived. See Commonwealth v. Fowler, 930 A.2d 586, 590-91 (Pa.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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