J-S13035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILFREDO JUNIOR ORTIZ, JR. Appellant No. 1479 WDA 2014

Appeal from the PCRA Order entered August 19, 2014 In the Court of Common Pleas of Erie County Criminal Division at No: CP-25-CR-0002103-2009

BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ. MEMORANDUM BY STABILE, J.: FILED JUNE 15, 2015 Appellant, Wilfredo Junior Ortiz, Jr., appeals from the August 19, 2014 order of the Erie County Court of Common Pleas dism issing as untimely his petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. We affirm.

The facts of the case can be summarized as follows. On November 9, 2009, Appellant pled guilty to robbery and firearms not to be carried without a license. On January 13, 2010, Appellant was sent enced to 72 to 144 months’ incarceration on the robbery count, followe d by 60 months of statesupervised probation, and 36 to 72 months’ incarcer ation on the firearm count, to run concurrently with the robbery count. Appellant filed a timely motion for reconsideration, which the trial court d enied on April 5, 2010. Appellant did not file a direct appeal. On July 10 , 2014, Appellant filed theJ-S13035-15

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instant PCRA petition, which the PCRA court denied on August 19, 2014. This appeal followed. On appeal, Appellant raises the following issue for our review: “Whether the lower court erred in denying PCRA reli ef based on the finding of untimeliness and waiver[.] Appellant’s Brief at 2. Before we can address the merits of the claims, we must determine the timeliness of the instant PCRA petition because we have no jurisdiction to entertain any review of the claims if the petiti on is untimely.

Commonwealth v. Watts , 23 A.3d 980, 983 (Pa. 2011). The PCRA contains the following restrictions govern ing the timeliness of any PCRA petition. (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 t he result of interference by government officials with the prese ntation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the Uni ted States; (ii) the facts upon which the claim is predicated w ere 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 State s or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.J-S13035-15

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(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (3) For purposes of this subchapter, a judgment bec omes final at the conclusion of direct review, including discreti onary review in the Supreme Court of the United States and the Supr eme Court of Pennsylvania, or at the expiration of time for s eeking the review. 42 Pa.C.S.A. § 9545(b). Here, the record reflects the judgment of sentence became final on May 5, 2010, i.e. , at the expiration of the time for seeking direct review.

See 42 Pa.C.S.A. § 9545(b)(3). Because Appellant had one year from May 5, 2010 to file his PCRA petition, the current fili ng is untimely on its face given it was filed on July 10, 2014. The one-year time limitation can be overcome if a p etitioner alleges and proves one of the exceptions set forth in Secti on 9545(b)(1)(i)-(iii). Appellant acknowledges that the instant PCRA petiti on is “patently untimely,” Appellant’s Brief at 4, and that it is Appellant’s burden to show that it falls within a statutory exception set forth in Section 9 545(b) for this Court to consider the appeal. Id. at 5. Yet, Appellant does not explain, let alone allege, 1 under which exception the petition falls and/or wh at error(s) the PCRA court committed in not finding an applicable e xception(s). In other

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1 It should be noted that the PCRA court found Appel lant “fail[ed] to prove an exception to the timeliness requirement under [S ection 9545(b)(1)].” Notice of Intent to Dismiss PCRA Pursuant to Pa.R.C rim.P. 907, 7/30/14, at 4.J-S13035-15

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words, Appellant argues that the PCRA court erred i n finding the PCRA petition untimely, but did not bother providing any argument or authority for this bald allegation. The claim is therefore waive d. 2 See Pa.R.A.P. 2119; Commonwealth v. Buterbaugh , 91 A.3d 1247, 1262 (Pa. Super. 2014) ( en banc ) (failure to conform to the Rules of Appellate Pro cedure results in waiver of the underlying issue); Commonwealth v. Brougher , 978 A.2d 373, 375-76 (Pa. Super. 2009 (failure to develop ar gument and cite relevant authority for the argument results in waiver). The instant petition is, therefore, untimely and th e trial court did not err in denying PCRA relief. 3

Order affirmed.

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2 In his PCRA petition, Appellant challenged the leg ality of his sentence and raised one claim of ineffective assistance of couns el for failure to challenge the legality of the sentence, but did not address, as mentioned, the timeliness of the petition. In Commonwealth v. Fahy , 737 A.2d 214 (Pa. 1999), our Supreme Court stated: “Although legality of sentence is always subject to review within the PCRA, claims must stil l first satisfy the PCRA’s time limits or one of the exceptions thereto.” Id. at 223. Thus, even if the claims is couched as a legality of the sentence iss ue, the claim will not be reviewed if raised in an untimely PCRA petition. S imilarly, “[i]t is well settled that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the P CRA.” Commonwealth v. Wharton , 886 A.2d 1120, 1127 (Pa. 2005).

3 The PCRA court dismissed the petition because it f ound it to be untimely. It also found the issues waived for failure to file a direct appeal and/or as vague. Because the instant petition is untimely, “ [w]e need not reach this level of review because the untimeliness of the pet ition goes to the trial court’s jurisdiction to even entertain the merits o f the petition.”. Commonwealth v. Lusch , 759 A.2d 6, 9 n.1 (Pa. Super. 2000).J-S13035-15

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/15/2015