Com. v. Alexander, K

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KEITH ALEXANDER,
Appellant No. 1941 EDA 2013
Appeal from the PCRA Order entered June 7, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0702301-2002
BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 16, 2014
Keith Alexander (“Appellant”) appeals pro se from the order denying
his untimely petition for post-conviction relief filed pursuant to the Post
Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.
The PCRA court summarized the pertinent facts and procedural history
as follows:
[Appellant] drove codefendant to complainant, where
he was sitting on steps rolling a blunt. Codefendant got
out of the car, asked “Why you let him rob me?”, then shot
the complainant in the left lower chest and abdomen area
three to four times, paralyzing him.
[Appellant] was convicted by a jury of attempted
murder and related charges. He was sentenced to 300 to
600 months [of] incarceration for attempted murder and a
consecutive term of 18 to 72 months [of] incarceration for
[a firearm violation]. [Appellant] filed a direct appeal, and
*Retired Senior Judge assigned to the Superior Court.
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the sentence was affirmed. [Commonwealth v.
Alexander, 928 A.2d 1117 (Pa. Super. 2007)
(unpublished memorandum). Our Supreme Court denied
Appellant’s petition for allowance of appeal on October 24,
2007. Commonwealth v. Alexander, 934 A.2d 1275(2007)].
… [Appellant] filed a first pro se [PCRA petition]. PCRA
counsel filed a Finley letter [Commonwealth v. Finley,
550 A.2d 213 (Pa. Super. 1988) (en banc)], and this court
agreed that the [PCRA petition] should be dismissed. This
decision was affirmed on appeal. [Commonwealth v.
Alexander, 990 A.2d 34 (Pa. Super. 2009) (unpublished
memorandum). On August 6, 2010, our Supreme Court
denied Appellant’s petition for allowance of appeal.
Commonwealth v. Alexander, 4 A.3d 1050 (Pa. 2010)].
On January 29, 2013, [Appellant] filed a second PCRA
Petition, claiming violations of the Constitutions of
Pennsylvania and/or the United States, and ineffective
assistance of counsel. On April 5, 2013, this court sent
[Appellant] a Notice pursuant to Pa.R.Crim.P. 907,
informing [Appellant] that his [second] PCRA Petition was
untimely filed pursuant to Pa.C.S. §9545(b). [On April 18,
2013, Appellant filed a response.] On May 10, 2013
[Appellant’s second] PCRA Petition was formally dismissed
by the court as untimely filed.
PCRA Court Opinion, 8/19/13, at 1-2 (footnote omitted). This pro se appeal
follows. The PCRA court did not require Pa.R.A.P. 1925 compliance.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
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Before addressing the issues Appellant presents on appeal, we must
first consider whether the PCRA court properly determined that Appellant’s
petition was untimely. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.
2010) (citation omitted). Thus, if a petition is untimely, neither an appellate
court nor the PCRA court has jurisdiction over the petition. Id. “Without
jurisdiction, we simply do not have the legal authority to address the
substantive claims” raised in an untimely petition. Id.Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, an
exception to the time for filing the petition. Commonwealth v. Gamboa-
Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under
these exceptions, the petitioner must plead and prove that: “(1) there has
been interference by government officials in the presentation of the claim; or
(2) there exists after-discovered facts or evidence; or (3) a new
constitutional right has been recognized.” Commonwealth v. Fowler, 930
A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition
invoking one of these statutory exceptions must “be filed within sixty days of
the date the claim first could have been presented.” Gamboa-Taylor, 753
A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to
the time restrictions of the PCRA must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
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A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not
raised before the lower court are waived and cannot be raised for the first
time on appeal.”).
Here, Appellant’s judgment of sentence became final on January 22,
2008, when the ninety-day period for filing a writ of certiorari with the
United States Supreme Court expired. See U.S.Sup.Ct.R. 13; 42 Pa.C.S.A.
§9545(b)(3). Therefore, Appellant had to file his petition by January 22,
2009, in order for it to be timely. As Appellant filed the instant petition on
January 29, 2013, it is untimely unless he has satisfied his burden of
pleading and proving that one of the enumerated exceptions applies. See
Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999).
Appellant has failed to plead and prove any exception to the PCRA’s
time bar. Indeed, as the PCRA court explained: “In his second PCRA
Petition, [Appellant] did not even plead an exception to the timing
requirement under the PCRA[.]” PCRA Court Opinion, 8/19/13, at 2. Our
review of Appellant’s petition confirms this fact. In his appellate brief,
Appellant essentially argues that the PCRA’s time bar is unconstitutional.
See Appellant’s Brief at 6-10. Such a challenge has been repeatedly
rejected by the appellate courts in Pennsylvania. See, e.g.,
Commonwealth v. Peterkin, 722 A.2d 628 (Pa. 1998); Commonwealth
v. Johnson, 732 A.2d 639 (Pa. Super. 1999).
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In sum, the PCRA court correctly determined that it lacked jurisdiction
to consider Appellant’s second PCRA petition. We therefore affirm the PCRA
court’s order denying Appellant post-conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2014
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