Com. v. Wilkins, A., Sr.

J-S64044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLEN L. WILKINS, SR. :
:
Appellant : No. 1282 WDA 2019
Appeal from the PCRA Order Entered June 28, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001235-2015,
CP-22-CR-0003382-2002
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 13, 2019
Allen L. Wilkins, Sr. (Wilkins) appeals pro se from the order dismissing
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. We affirm.
On Case No. CP-22-CR-3382-2002, Wilkins was convicted by a jury of,
among other offenses, Attempted Murder and sentenced to 12 to 24 years’
imprisonment. On direct appeal, this Court affirmed the judgment of
sentence. See Commonwealth v. Wilkins, 897 A.2d 524 (Pa. Super. 2006).
He then filed a petition for allowance of appeal that was denied on July 12,
2006. See Commonwealth v. Wilkins, 902 A.2d 1241 (Pa. 2006). Because
Wilkins did not seek discretionary review in the United States Supreme Court,
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* Retired Senior Judge assigned to the Superior Court.
J-S64044-19
his judgment of sentence became final 90 days after the denial of his petition
for allowance of appeal, which would have been October 10, 2006. Since that
time, Wilkins has filed numerous PCRA petitions that have been denied. Most
recently, this Court affirmed the denial of three motions that were treated as
petitions for relief under the PCRA because Wilkins failed to plead or prove
any exception to the PCRA’s time bar. See Commonwealth v. Wilkins, No.
297 MDA 2017 (Pa. Super. filed September 21, 2017).
On Case No. CP-22-CR-1235-2015, Wilkins entered a plea of nolo
contendere to barratry and on September 25, 2015, was sentenced to serve
12 months’ probation consecutive to Case No. CP-22-CR-3382-2002. He filed
a direct appeal that this Court dismissed for filing a defective brief. See
Commonwealth v. Wilkins, No. 1877 MDA 2015 (Pa. Super. filed June 6,
2016). Wilkins then filed a petition for allowance of appeal that our Supreme
Court denied on March 14, 2017. See Commonwealth v. Wilkins, 169 A.3d
6 (Pa. 2017). He did not seek discretionary review in the United States
Supreme Court. Consequently, the judgment of sentence became final on
June 12, 2017.
On February 1, 2019, Wilkins filed a “plea agreement PCRA” that the
PCRA court treated as a petition for relief under the PCRA. In the petition’s
caption, Wilkins listed the docket numbers for both of his cases. On May 16,
2019, the PCRA court issued notice of its intent to dismiss the petition under
Pa.R.Crim.P. 907(a)(1) with an accompanying opinion explaining that Wilkins
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had failed to plead any timeliness exception to the PCRA time bar. After he
responded, the PCRA court entered a June 28, 2019 order dismissing the
petition. Wilkins timely appealed.1
We first address the timeliness of the petition because the PCRA time
limitations implicate our jurisdiction and may not be altered or disregarded to
address the merits of a petition. See Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (PCRA time limitations implicate jurisdiction and may
not be altered or disregarded to address the merits of a petition). Any petition
for relief filed under the PCRA, including a second or subsequent one, must be
filed within one year of the date the judgment of sentence becomes final,
unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-
(iii) are applicable:
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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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1 This Court’s standard of review regarding an order denying 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. See Commonwealth v. Rizvi,
166 A.3d 344, 347 (Pa. Super. 2017).
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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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
As noted above, Wilkins listed both of his cases in his PCRA petition. On
Case No. CP-22-CR-3382-2002, the judgment of sentence became final in
October 2006, while the judgment of sentence on Case No. CP-22-CR-1235-
2015 became final on June 12, 2017, which means Wilkins had until June 12,
2018, to timely file his petition if he wished to collateral attack his judgment
of sentence. However, as the PCRA court found, Wilkins did not plead or prove
any exception to the PCRA’s time bar in his petition, nor does he attempt to
argue in his brief that any of the above-listed exceptions apply. We, therefore,
agree with the PCRA court that the petition was untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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