J

- A28042

- 17

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS VALENTINE

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1002 EDA 2017
Appeal from the Order March 7, 2017 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP

- 46

- CR

- 0003521

- 2011

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

JUDGMENT ORDER BY DUBOW, J.: FILED NOVEMBER 28, 2017
Appellant, Carlos Valentine, appeals from the Order entered in the
Montgomery County Court of Common Pleas dismissing as untimely his

secon d Petition filed under the Post Conviction Relief Act (“PCRA”) , 42

Pa.C.S. §§ 9541

- 9546. 1 After careful review, we conclude that Appellant’s

pro se Petition was untimely and affirm.

_________________ __________ ______ ____ _______

1 Appellant’s pro se Notice of Appeal erroneously states he is appealing from

an Order dated January 22, 2017 . This C ourt issued a Rule to Show Cause as to why the appeal should not be quashed as it appears to be from a non

existent order. Appellant respon ded pro se without explicitly addressing that question. It is apparent from his response, however, that Appellant was, in fact, appealing from the PCRA Court’ s March 7, 2017 Order and that his Notice of Appeal filed March 21, 2017, was timely. Accordingl y, we decline to quash the appeal and we have amended the caption.J

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- 2

-

Following a non

- jury trial , the court convicted Appellant of Aggravated
Assault, Recklessly Endangering Another Person, Disorderly Conduct and two

counts each of Simple Assault and Harassment. 2 On August 15, 2012, the

court sentenced him to a term of three

- and

- a
- half to ten years’
imprisonment. Appellant did not file a direct appeal. His J udgment of
Sentence, thus, became final on September 14, 2012. 3

On May 20, 2014, Appellant filed his first PCRA P etition pro se and
counsel was appointed. On September 10, 2014, the PCRA court dismissed

the P etition as untimely , and o n April 8 , 2015, t h is Court affirmed.

Commonwealth v. Valentine , 2874 EDA 2014 (Pa. S uper. 2015)
(unpublished memorandum).
On February 7, 2017, Appellant filed a pro se Writ of Habeas Corpus
contending his sentence was illegal. The PCRA court properly treated the
filing as a second PCRA petition 4 and , after filing a Pa.R.Crim.P. 907 No tice,
dismissed it as untimely.

_________________ __________ ______ ____ _______

2 18 Pa.C.S. § 2702(a)(1) ; 18 Pa.C.S. § 2705 ; 18 Pa.C.S. § 5503(a)(1) ; 18 Pa.C.S. § 2701(a)(1) ; and 18 Pa.C.S. § 2709(a)(1), respectively.

3 See 42 Pa.C.S. § 9545(b)(3) (providing that 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 the expiration of time for seeking the review.”

4 See 42 Pa. C.S. § 9542; Commonwealth v. Taylor , 65 A.3d 462, 466 (Pa. Super. 2013) (holding “[i]ssues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas (Footnote Continued Next Page)J

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- 3

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This timely appeal followed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:

(a) Wh ether the court abused its discretion to convert Appellant’s pet ition for writ of habeas corpus ad subjiciendum into a petition for post

- conviction collateral relief, when the pla i n language of 42 Pa.C.S.A. § 9545 prohibited such an action by anyone?

(b) Whether the court abused its discretion to convert A ppellant’s petition for writ of habeas corpus ad subjiciendum into a petition for post

- conviction collateral relief knowing that relief would be barred specifically by the PCRA’s time limitations which relief pursuant to state habeas corpus would have been available?

(c) Whether the court erred in dismissing the issue questioning the court’s jurisdiction over the subject matter; pertaining to a v oi d judgment of sentence order, when such a claim is nonwaivable and can be pursued at any time?

(d) Can a claim of subjec t matter jurisdiction or void judgment be time barred?
Appellant’s Brief at 6.
Before addressing the merits of Appellant’s issues, we must determine
whether we have jurisdiction to entertain the underlying PCRA petition. “The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may

not address the merits of the i ssues raised if the PCRA petition was not

(Footnote Continued)

_____________ __ ________
corpus petition.

. . . [A] defendant cannot escape the PCRA time

- bar by titling his petition or motion as a writ of habeas corpus .”) (footnote omitted)

.J

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- 4

-

timely filed.” Commonwealth v. Copenhefer , 941 A.2d 646, 648

- 49 (Pa.
2007). “Although legality of sentence is always subject to review within the
PCRA, claims must still first satisfy the PCRA’s time limits or on e of the
exceptions thereto.” Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa.
1999). See 42 Pa.C.S. § 9545(b)(1)(i

- iii) ( setting forth timeliness
exceptions).

Here, Appellant’s J udgment of S entence became final on September

14, 2012. The instant PCRA peti tion is, thus, facially untimely. Appellant
did not plead or prove any timeliness exception. Therefore, we lack
jurisdiction to consider the merits of his P etition. See Copenhefer , 941

A.2d at 648

- 49. Accordingly, we affirm the O rder of the PCRA court
dismissing his PCRA petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/ 28/2017