J-A27042-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LYNN EDWARD ELMS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 875 WDA 2017

Appeal from the PCRA Order May 30, 2017

in the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001226-1998

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 11, 2018

Lynn Edward Elms (“Elms”) appeals, pro se, from the Order dismissing 

his eighth Petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On March 30, 1999, following a jury trial, Elms was convicted of 

second-degree murder, robbery, and criminal conspiracy. The trial court 

sentenced Elms to an aggregate term of life in prison.1 This Court affirmed 

Elms’s judgment of sentence for the second-degree murder conviction,

2

and 

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1 Relevantly, Elms received a mandatory sentence pursuant to 18 Pa.C.S.A. 

§ 1102(b), which provides that “a person who has been convicted of murder 

of the second degree ... shall be sentenced to a term of life imprisonment.”

2 This Court vacated the separate, concurrent sentence imposed for Elms’s

robbery conviction because the trial court failed to merge the second-degree 

murder and robbery convictions for sentencing purposes. 
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the Pennsylvania Supreme Court denied allowance of appeal. See 

Commonwealth v. Elms, 790 A.2d 337 (Pa. Super. 2001) (unpublished 

memorandum), appeal denied, 800 A.2d 931 (Pa. 2002).

On April 3, 2017, Elms filed the instant Petition, his eighth, challenging 

the legality of his sentence. On April 12, 2017, the PCRA court issued a 

Notice of its intention to dismiss Elms’s Petition without a hearing, pursuant 

to Pa.R.Crim.P. 907. Elms filed a “Petition in Opposition,” arguing that the 

PCRA court’s “assertions that sec[tion] 9545(b)[’s] time limits are 

jurisdictional [are] dicta and not based on statutory analysis.” Petition in 

Opposition, 4/27/17, at 1. The PCRA court subsequently dismissed Elms’s 

Petition as untimely filed. Thereafter, Elms, pro se, filed the instant timely 

appeal.

3

We review an order dismissing 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 record. We will not disturb a PCRA court’s 

ruling if it is supported by evidence of record and is free of legal 

error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations 

omitted).

Initially, under the PCRA, any PCRA petition, “including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

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3 The Commonwealth did not file a brief.
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becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment 

of sentence becomes 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 time for seeking the 

review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are 

jurisdictional in nature and a court may not address the merits of the issues 

raised if the PCRA petition was not timely filed. Commonwealth v. 

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). 

Here, Elms’s judgment of sentence became final in September 2002, 

when the time for filing a petition for writ of certiorari with the United States 

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Sup. Ct. R. 13. 

Thus, because Elms filed the instant Petition in 2017, 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)(3). Any petition invoking one of these 

exceptions “shall be filed within 60 days of the date the claim could have 

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094. 

Additionally, “it is the petitioner’s burden to plead in the petition and prove 

that one of the exceptions applies. That burden necessarily entails an 

acknowledgement by the petitioner that the PCRA petition under review is 

untimely but that one or more of the exceptions apply.” Commonwealth v. 
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Crews, 863 A.2d 498, 501 (Pa. 2004) (citations omitted, emphasis in 

original).

Here, Elms neither acknowledges that his Petition is untimely, nor 

pleads any of the three timeliness exceptions set forth under 42 Pa.C.S.A. 

§ 9545(b)(3). See Crews, 863 A.3d at 501. Instead, Elms argues that his 

mandatory sentence of life in prison is illegal because the relevant 

sentencing statutes have since been repealed. Brief for Appellant at 9-10 

(unnumbered).4 

Elms challenges the legality of his sentence based upon a lack of 

statutory authorization, and such a claim is cognizable under the PCRA. See

42 Pa.C.S.A. § 9542 (stating that the PCRA “provides for an action by which 

... persons serving illegal sentences may obtain collateral relief.”); 

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (stating 

that “[i]f no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction”) (citation omitted). However, a 

challenge to the legality of a sentence is still subject to the PCRA’s 

jurisdictional requirements. See Commonwealth v. Berry, 877 A.2d 479, 

482 (Pa. Super. 2005) (en banc) (stating that “a court may entertain a 

challenge to the legality of a sentence[,] so long as the court has jurisdiction 

to hear the claim. In the PCRA context, jurisdiction is tied to the filing of a 

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4 Elms previously raised a similar claim in his February 2014 and July 2014 

Petitions, both of which the PCRA court dismissed as untimely filed.
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timely PCRA petition.”); see also Commonwealth v. Infante, 63 A.3d 

358, 365 (Pa. Super. 2013) (stating that “[a]lthough legality of sentence is 

always subject to review within the PCRA, claims must still first satisfy the 

PCRA’s time limits or one of the exceptions thereto.”) (citation omitted).

As previously stated, Elms’s Petition is facially untimely. Additionally, 

Elms failed to establish an exception to the PCRA’s timeliness requirement. 

Accordingly, we lack jurisdiction to consider the merits of Elms’s challenge to 

the legality of his sentence. See Commonwealth v. Jones, 932 A.2d 179, 

182 (Pa. Super. 2007) (stating that when a petitioner challenges the legality 

of his sentence in an untimely PCRA petition, “the claim is not waived, but 

the jurisdictional limits of the PCRA itself render the claim incapable of 

review.”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/2018
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