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

v.

RANEESHA NICOLE EVANS
Appellant No. 676 WDA 2015

Appeal from the PCRA Order entered April 16 , 2015 In the Court of Common Pleas of Erie County Criminal Division at No: CP

- 25

- CR

- 0001505

- 2009

BEFORE: OLSON, STABILE, and STRASSBURGER, * JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 19, 2016
Appellant, Raneesha Nicole Evans, appeals pro se from the April 16,
2015 order entered in the Court of Common Pleas of Erie County, denying as
untimely her second petition for co llateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. Following
review, we affirm.
In its notice of intent to dismiss Appellant’s petition, the PCRA court
provided the following summary of the facts and pro cedural history of the

case: After a jury trial, [Appellant] was found guilty in absentia of six counts of possession with intent to deliver, criminal conspiracy, six counts of possession, and one count of possession of

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* Retired Senior Judge assigned to the Superior Court.J

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paraphernalia. On April 29, 2010, [ Appellant] was sentenced in absentia to an aggregate term of 5 to 10 years’ imprisonment. On June 1, 2010, after the [c]ourt granted the Commonwealth’s motion to reconsider, the [c]ourt amended [Appellant’s] sentence to impose an aggregate term of 8 to 16 years’ imprisonment. [Appellant] filed a direct appeal and on November 29, 2011, the Superior Court affirmed her judgment of sentence. Commonwealth v. Evans , 718 WDA 2011 (Pa. Super., filed Nov. 29, 2011) (unpublished memorandum).
On February 9, 2012 , [Appellant] filed her first PCRA petition alleging, inter alia , that she was improperly denied the benefit of RRRI 1 sentences. On July 5, 2012, the [c]ourt dismissed [Appellant’s] PCRA petition. [Appellant] filed an appeal, and on April 3, 2013, the S uperior Court dismissed her appeal. Commonwealth v. Evans , 143 WDA 2012 (Pa. Super., filed April 5, 2013) (unpublished memorandum).
On February 18, 2015, [Appellant] filed a “Petition for Resentencing [u]nder Act 81 RRRI”, which [the court] treated as
a second PCRA petition.
Notice of Intent to Dismiss, 3/25/15, at 1

- 2 (footnote omitted).
Appellant filed a timely response to the notice, arguing her petition

raised a non

- waivable legality of sentence claim. On April 16, 2015, the
PCRA court dismissed Appellant’s petition. Appellant timely filed an appeal
and complied with the PCRA court’s directive to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 19, 2015,
the PCRA court issued its 1925(a) opinion, incorporating by reference the
March 25 notice of intent to dismiss. In that notice, the PCRA court
concluded that Appellant’s PCRA petition was untimely filed more than a year

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1 “Recidivism risk reduction incentive.” See 61 Pa.C. S.A. § 4501 et seq.J

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after her judgment was final and that Appellant failed to allege any facts to
satisfy an exception to the PCRA’s time bar. 2 Notice of Intent to Dismiss,
3/25/15, at 2

- 3 (citing 42 Pa.C.S.A. § 9545(b)(1)).
In her brief filed with this Court, Appellant restates the same two
issues raised in her 1925(b) statement.

I. Did the [l]ower [c]ourt err when it failed to apply the RRRI to [A]ppellant’s sentence on April 29, 2010, when the Supr eme Court ruled that the sentencing court must apply RRRI when a defendant is eligible?

II. Did the [l]ower [c]ourt err by denying [A]ppellant [ ’ ] s challenges to the legality of her sentence, when RRRI is one of the CLEAR issues under challenges to the legalit y of sentence and can never be waived?
Appellant’s Brief at 4 (emphasis in original).

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2 To qualify for an exception to the PCRA timeliness requirements, a PCRA petition must allege, and the petitioner must prove, 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;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not hav e 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 an d has been held by that court to apply retroactively. 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii).J

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As reflected above, the PCRA court treated Appellant’s petition as a
second PCRA petition and denied the petition as untimely. In

Commonwealth v. Miller , 102 A.3d 988 (Pa. Super. 2014), this Court

reiterated:
“In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Fears , [86 A.3d 795, 803 (Pa. 2014)] (internal quota tion marks and citation omitted). “The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.” Commonwealth v. Spotz , [84 A.3d 294, 311 (Pa. 2014)] (citation omitted). “It is well

- settled that a PCRA court’s credibility determinations are binding upon an appellate court so long as they are supported by the record.” Commonwealth v. Robinson , [82 A.3d 998, 1013 (Pa. 2013)] (citation omitted). H owever, this Court reviews the PCRA court’s legal conclusions de novo. Commonwealth v. Rigg , 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Id. at 992.
Before we can consider the merits of Appellant’s issues, we must
determine if her petition was timely filed.
Pennsylvania law makes clear that when “a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition.” Commonwealth v. Seskey , 86 A.3d 237, 241 (Pa. Super. 2014) (citation omitted). The “peri od for filing a PCRA petition is not subject to the doctrine of equitable tolling; instead, the time for filing a PCRA petition can be extended only if the PCRA permits it to be extended[.]” Commonwealth v. Ali , [86 A.3d 173, 177 (Pa. 2014)] (internal qu otation marks and citation omitted). This is to “accord finality to the collateral review process.” Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 983 (2011) (citation omitted).

Id. at 992

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In this case, Appellant’s judgment of sentence was final o n December
29, 2011. Therefore, in accordance with 42 Pa.C.S.A. § 9545(b)(1), absent
a recognized exception, Appellant had until December 31, 2012 3 to file a
petition, including a second or subsequent petition. Appellant’s petition, filed
in February 201 5, more than two years beyond the deadline, is untimely on
its face. Because the petition was untimely filed and because Appellant did
not plead or prove any exception to the PCRA’s timeliness requirements, the
PCRA court was without jurisdiction to consi der the petition. Id. at 992;

Commonwealth v. Hernandez , 79 A.3d 649, 654

- 55 (Pa. Super. 2013).
Appellant does not acknowledge the time limitations of the PCRA or
the PCRA court’s lack of jurisdiction over untimely petitions. Instead, she
contends that her claim is an illegality of sentence claim that cannot be
waived. It is true that a challenge t o the legality of a sentence cannot be
waived on appeal. See, e.g., Commonwealth v. Newman , 99 A.3d 86, 90
(Pa. Super. 2014). In Miller , this Court recognized:
It is generally true that “this Court is endowed with the ability to consider an issue of ill egality of sentence sua sponte.” Commonwealth v. Orellana , 86 A.3d 877, 883 n. 7 (Pa. Super. 2014) (citation omitted). However, in order for this Court to review a legality of sentence claim, there must be a basis for our jurisdiction to engage in such r eview. See Commonwealth v. Borovichka , 18 A.3d 1242, 1254 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a sentence . . . may be entertained as long as the reviewing court has jurisdiction[ ]”) (citation omitted). As this Court recently no ted, “[t]hough not

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3 December 29, 2012 was a Saturday.J

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technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised . . . in an untimely PCRA petition for which no time

- bar exception applies, thus depriving the court of jurisdiction over the claim.” [ Com monwealth v. Seskey , 86 A.3d 237, 242 (Pa. Super. 2014)]. As a result, the PCRA court lacked jurisdiction to consider the merits of Appellant’s second PCRA petition, as it was untimely filed and no exception was proven.
Miller , 102 A.3d at 995

- 96 (cita tions omitted).
The PCRA court denied Appellant’s petition as untimely and determined
it lacked jurisdiction to consider it. We find the PCRA court’s determinations
are supported by the record and free of legal error. Further, even though a
legality of sentence claim can be considered sua sponte by this Court under
some circumstances, it cannot be considered if this Court lacks jurisdiction

over the claim. See Newman, supra; Miller, supra

. Because Appellant’s
petition was untimely, this Court lacks jurisdiction over it and cannot
consider the merits, if any, of Appellant’s claims. Therefore, we affirm.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/19/2016