J-S75041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JAMES EVERETT, III, :

:

Appellant : No. 228 EDA 2016

Appeal from the PCRA Order December 4, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0100251-1986

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016

James Everett, III (“Everett”), appeals, pro se, from the Order 

dismissing his sixth Petition for relief filed pursuant to the Post Conviction 

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

On April 4, 1987, following a jury trial, Everett was convicted of firstdegree murder and possession of an instrument of crime.1

 The trial court 

sentenced Everett to a term of life in prison for the first-degree murder 

conviction, and a concurrent term of 21⁄2 to 5 years for possessing an 

instrument of crime. This Court affirmed Everett’s judgment of sentence on 

November 2, 1988. See Commonwealth v. Everett, 555 A.2d 244 (Pa. 

Super. 1988) (unpublished memorandum).

On May 18, 2012, Everett, pro se, filed the instant PCRA Petition, his 

sixth. Everett subsequently filed two Amended Petitions, one in July 2012, 

 

1 18 Pa.C.S.A. §§ 2502(a), 907.
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and one in August 2013. The PCRA court issued a Pa.R.Crim.P. 907 Notice 

of Intent to Dismiss, and Everett filed a Response. The PCRA court 

dismissed Everett’s Petition as untimely filed on December 4, 2015.2 

Thereafter, Everett filed the instant timely appeal.

On appeal, Everett raises the following questions for our review:

I. Whether the [PCRA] court[’]s 43[-]month inordinate[,] 

inexcusable delay in deciding [Everett’s] Martinez v. Ryan[, 

132 S. Ct. 1309 (2012)3] claim of initial-review collateral 

counsel[’]s ineffectiveness[,] causing [the] default of [a] 

substantive claim of trial/[appellate] counsel’s ineffectiveness, 

therein prejudiced [Everett’s] right to federal review, where the 

[PCRA] court[’]s review/analysis failed to establish by record 

evidence of facts that [Everett’s] claim did not fit within the 

Martinez holding for collateral review[?]

II. Whether the [PCRA] court[,] in its decision to govern 

[Everett’s] claim of illegal/unlawful sentence of life 

imprisonment, where the [PCRA] court[’]s [] lack of statutory 

authority, and/or subject matter/persona[l] jurisdiction to 

impose, under the time bar provision was/is in violation of due 

process, and unsupported by case law [and] record evidence to 

deny relief, where [a] claim of illegal/unlawful sentence is nonwaivable and can be raised at any time[?]

 

2 The PCRA court noted that its Order dismissing Everett’s PCRA Petition as 

untimely filed “also covers [Everett’s] Writs of Habeas Corpus and all of his 

subsequent petitions, motions and responses, which pertain to [Everett’s] 

current PCRA [P]etition and which have been filed to date with [the PCRA] 

court.” PCRA Court Memorandum and Order, 12/4/15, at 8.

3

In Martinez, the United States Supreme Court held that “[w]here, under 

state law, claims of ineffective assistance of trial counsel must be raised in 

an initial-review collateral proceeding, a procedural default will not bar a 

federal habeas court from hearing a substantial claim of ineffective 

assistance at trial if, in the initial-review collateral proceeding, there was no 

counsel or counsel in that proceeding was ineffective.” Martinez, 132 S. Ct. 

at 1320 (emphasis added).
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Brief for Appellant at ii (footnote added).

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 the 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 

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).

Everett’s judgment of sentence became final in December 1988, when 

the time for filing a petition for allowance of appeal with the Pennsylvania 

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); see also Pa.R.A.P. 

1113. Because Everett filed the instant Petition nearly three decades later, 

his Petition is facially untimely.
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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)(1)(i-iii). 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.

In his first claim, Everett invokes the newly-recognized constitutional 

right exception, set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii),4and claims that 

the United States Supreme Court decision in Martinez entitles him to 

redress on his previously raised ineffective assistance of counsel claims. 

Brief for Appellant at 8-11. Everett claims that he has not been granted the 

review to which the Martinez decision entitles him. Id. at 12. Additionally, 

Everett asserts that the Martinez decision set forth a substantive rule, 

which applies retroactively. Id. at 13-16. 

This Court has specifically considered the application of Martinez to 

Pennsylvania PCRA proceedings, and has determined that Martinez does 

not satisfy the newly-recognized constitutional right exception. See

Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super. 2013) (stating 

that “[w]hile Martinez represents a significant development in federal 

 

4

In order to successfully invoke the newly-recognized constitutional right 

exception, a petitioner must plead and prove that “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 and has been held by that court to apply retroactively.” 42 

Pa.C.S.A. § 9545(b)(1)(iii).
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habeas corpus law, it is of no moment with respect to the way Pennsylvania 

courts apply the plain language of the time bar set forth in [S]ection 

9545(b)(1) of the PCRA.”). Thus, Everett is not entitled to relief on this 

claim.5

In his second claim, Everett challenges the lack of statutory 

authorization for his sentence. Brief for Appellant at 19-21. Everett claims 

that, at the time of his sentencing, the trial court could not impose a term of 

life in prison without first designating his case as a capital case. Id. at 21.

Everett’s claim challenges the legality of his sentence, 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 the sentence[,] so long as the court has jurisdiction to hear 

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

 

5 To the extent that Everett claims that his counsel was ineffective, we note 

that “a claim of ineffective assistance of counsel does not save an otherwise 

untimely petition for review on the merits.” Commonwealth v. Fahy, 737 

A.2d 214, 223 (Pa. 1999).
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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, Everett’s Petition is facially untimely. 

Additionally, Everett failed to establish an exception to the PCRA’s timeliness 

requirement. Accordingly, we lack jurisdiction to consider the merits of 

Everett’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: 11/23/2016
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