J-S74014-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RALPH JOSEPH SUNY

Appellant No. 1215 EDA 2016

Appeal from the PCRA Order March 29, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006903-2003

CP-23-CR-0006906-2003

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED October 6, 2016.

Appellant appeals pro se from the order entered in the Court of 

Common Pleas of Delaware County dismissing his “Motion for 

Correction/Modification of Sentence,” which the lower court treated as a 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A. §§ 9541-9546. We affirm. 

The relevant facts and procedural history are as follows: Following a 

jury trial, Appellant was convicted of two counts of burglary, three counts of 

conspiracy to commit burglary, and driving while under the influence of 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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alcohol.1 The trial court sentenced Appellant to an aggregate of thirteen 

years and three months to twenty-seven years in prison. Appellant filed a 

timely, direct appeal to this Court, and on November 6, 2006, we affirmed. 

On July 6, 2007, the Pennsylvania Supreme Court denied Appellant’s petition 

for allowance of appeal; Appellant did not file a writ of certiorari with the 

United States Supreme Court.

On October 29, 2007, Appellant filed his first, timely PCRA petition, 

and counsel was appointed to represent him. Counsel sought to withdraw 

pursuant to Turner/Finley,

2

and after permitting counsel to withdraw, the 

PCRA court dismissed Appellant’s first PCRA petition on October 6, 2008. 

This Court affirmed the dismissal of the PCRA petition, and our Supreme 

Court denied Appellant’s petition for allowance of appeal.

On May 19, 2011, Appellant filed a second PCRA petition, which the 

PCRA court dismissed on June 22, 2011. This Court affirmed the dismissal 

of the PCRA petition, and our Supreme Court denied Appellant’s petition for 

allowance of appeal.

On or about January 12, 2016, Appellant filed a pro se petition entitled 

“Motion for Correction/Modification of Sentence” wherein he challenged the 

legality of his sentence. The lower court treated the petition under the 

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1 18 Pa.C.S.A. § 3502, 18 Pa.C.S.A. § 903, and 75 Pa.C.S.A. § 

3802(d)(1)(ii), respectively.

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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auspices of the PCRA and issued notice of its intent to dismiss the petition. 

On March 29, 2016, the PCRA court dismissed Appellant’s petition, and this 

timely, pro se appeal followed. 

At the outset, contrary to Appellant’s argument, we conclude the PCRA 

court properly treated Appellant’s instant petition, entitled “Motion for 

Correction/Modification of Sentence,” under the auspices of the PCRA. The 

PCRA provides: “The action established in this subchapter shall be the sole 

means of obtaining collateral relief and encompasses all other common law 

and statutory remedies for the same purpose that exist when this 

subchapter takes effect[.]” 42 Pa.C.S.A. § 9542. Thus, where a petitioner’s 

claim is cognizable under the PCRA, regardless of the title given to the 

petition, the Court must analyze the petition under the auspices of the PCRA. 

Commonwealth v. Taylor, 65 A.3d 462, 465-55 (Pa.Super. 2013).

In his instant petition, Appellant contends his sentence is illegal since 

(1) he was not convicted of one of the burglary charges for which he was 

sentenced, (2) his minimum sentence for conspiracy exceeds one-half of his 

maximum sentence for conspiracy, and (3) his aggregate minimum sentence 

exceeds one-half of his aggregate maximum sentence. As the PCRA court 

correctly observed, challenges to the legality of a petitioner’s judgment of 

sentence are cognizable under the PCRA. See Commonwealth v. 

Jackson, 30 A.3d 516 (Pa.Super. 2011). Accordingly, the PCRA court 
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properly treated Appellant’s “Motion for Correction/Modification of Sentence” 

as a PCRA petition. 

With regard to petitions filed under the PCRA, as this Court has 

observed: 

The filing mandates of the PCRA are jurisdictional in nature and 

are strictly construed. The question of whether a petition is 

timely raises a question of law. Where the petitioner raises 

questions of law, our standard of review is de novo and our 

scope of review plenary. An untimely petition renders this Court 

without jurisdiction to afford relief. 

Taylor, 65 A.3d at 468 (citations omitted). Thus, at this juncture, we must 

determine whether Appellant’s January 12, 2016, petition was timely filed 

under the PCRA.

The most recent amendments to the PCRA, effective January 19, 1996, 

provide that a PCRA petition, including a second or subsequent petition, shall 

be filed within one year of the date the underlying judgment becomes final. 

42 Pa.C.S.A. § 9545(b)(1). 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 

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

Three statutory exceptions to the timeliness provisions in the PCRA 

allow for very limited circumstances under which the late filing of a petition 

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a 

petition must allege and the petitioner must prove:
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(i) the failure to raise a claim previously was the result of 

interference by government officials with the 

presentation of the claim in violation of the Constitution 

or the law of this Commonwealth or the Constitution or 

law of the United States;

(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 Pennsylvania after 

the time period provide in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

“We emphasize that it is the petitioner who bears the burden to allege 

and prove that one of the timeliness exceptions applies.” Commonwealth 

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation 

omitted). 

In the case before us, this Court affirmed Appellant’s judgment of 

sentence on November 6, 2006, and our Supreme Court denied Appellant's 

petition for allowance of appeal on July 6, 2007. Appellant did not seek 

further review. Accordingly Appellant's judgment of sentence became final 

for PCRA purposes on or about October 4, 2007, upon expiration of the time 

to seek certiorari with the United States Supreme Court. See U.S.Sup.Ct.R. 

13 (allowing ninety days to file petition for certiorari). Appellant filed his 

current PCRA petition on January 12, 2016, over eight years later. Thus, his 

current petition is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). 
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Nevertheless, Appellant suggests that, since his sentence is illegal for 

the reasons set forth in his petition, he is not subject to the PCRA’s 

timeliness restrictions. However, our Supreme Court has held specifically 

that, “[a]lthough legality of sentence is always subject to review within the 

PCRA, [legality of sentencing] claims must still first satisfy the PCRA’s time 

limits or one of the exceptions thereto.” Commonwealth v. Fahy, 558 Pa. 

313, 737 A.2d 214, 223 (1999). 

In the case sub judice, Appellant has not invoked any of the applicable 

exceptions to the PCRA, and therefore, we agree with the PCRA court that 

Appellant’s instant petition was untimely filed.3

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2016

____________________________________________

3 Appellant contends appellate counsel was ineffective in failing to raise his 

legality of sentencing issues on direct appeal; however, we note that our 

Supreme Court has held “that a claim of ineffective assistance of counsel 

does not save an otherwise untimely petition for review on the merits.” 

Fahy, 558 Pa. at 331, 737 A.2d at 223. 
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