J. S67010/16

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA
v. : : DEREYK L. MORRIS, : No. 79 EDA 2016
: Appellant :

Appeal from the PCR A Order, December 16, 2015, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 1103311

- 1995

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E. *

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED October 6, 2016.
Dereyk L. Morris appeal s pro se from the order of December 16,
2015, issued by the Court of Common Pleas of Philadelphia County that

dismissed his serial PCRA 1 petition without a hearing.
On February 25, 1997, appellant entered a negotiated plea and was
consecutively sentenced to 10 to 20 years’ imprisonment for third

- degree
murder, 10 to 20 years’ imprisonment for robbery, and 5 to 10 years for
criminal conspiracy for an aggregate sentence of 25 to 50 years’
imprisonment. 2 The sentences were to be served concurrently with a 1 7

-

* Former Justice specially assigned t o the Superior Court.

1 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541

- 9546.

2 18 Pa.C.S.A. § 2502(c), 18 Pa.C.S.A. § 3701(a)(1), and 18 Pa.C.S.A. § 903(a), respectively.J. S67010/16

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-

year federal sentence for carjacking 3 that appellant was serving at the time.
Appellant did not file a direct appeal.
On December 14, 2009, appellant filed a PCRA petition that challenged
his guilty plea on the basis that he did not want to plead guilt y to robbery
but did so because his counsel advised that he would get a lesser sentence.
The PCRA court dismissed the petition as untimely. On July 13, 2011,
appellant filed a second PCRA petition and claimed that trial counsel was

ineffective for failur e to examine the file. In an amended PCRA petition filed
on November 18, 2011, appellant claimed that the common pleas court
lacked subject matter jurisdiction. On December 17, 2012, appellant filed
an affidavit in which he claimed to have newly discover ed evidence and also
leveled allegations of ineffective assistance of counsel. On May 14, 2013,
appellant filed a motion to correct an illegal sentence and alleged that his
murder and robbery convictions should have merged for sentencing
purposes. The PC RA court dismissed this PCRA petition as untimely on
October 6, 2014. The PCRA court also ruled that it lacked jurisdiction to rule
on the motion to correct an illegal sentence which was treated as an
untimely PCRA petition.
On August 27, 2015, appellant filed the current PCRA petition which
was entitled “Motion to Correct Illegal Sentence

- Merger Issues” 4 in which he

3 18 U.S.C.A. § 2119. 4 The legality of a sentence is subject to review within th e PCRA. Commonwealth v. Fahy , 737 A.2d 214, 223 (Pa. 1999).J. S67010/16

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argued that the sentence he received was illegal because of the Double
Jeopardy Clause of the Fifth Amendment to the United States Constitu tion
and because he should not have been sentenced separately for offenses
which merged.
On November 6, 2015, the PCRA court issued a dismissal notice
pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response in which he
asserted that his petition was mailed on August 27, 2015, but it was not
marked “received” by the PCRA unit until October 5, 2015. The PCRA court
corrected the date of filing. On December 16, 2015, the PCRA court
dismissed the petition as untimely.
Appellant raises the following issues for this court’s review:
1.) Did [the PCRA court] error [sic] by dismissing [appellant’s] petition as untimely?
A.) Is [appellant’s] sentence illegal where the court failed to merge for sentencing purposes?
B.) Does [appellant’s] claim on Double J eopardy have arguable merit?
C.) Does [appellant’s] claim prove [and] meet requirements to establish counsel’s ineffectiveness?
D.) Is [appellant] eligible for time credit pursuant to 42 Pa.C.S.[A.] [§] 9760?
E.) Does [appellant] have a right to be appo inted counsel?J. S67010/16

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- F.) Did [appellant] pass [and] meet timeliness requirements pursuant to 42 Pa.C.S.[A.] [§] 9545(b)(1)?
Appellant’s brief at 4.
In PCRA appeals, our scope of review “is limited to the findings of the

PCRA court and the evidence on the reco rd of the PCRA court’s hearing,
viewed in the light most favorable to the prevailing party.”

Commonwealth v. Sam , 952 A.2d 565, 573 (Pa. 2008) (internal quotation
omitted). Because most PCRA appeals involve questions of fact and law, we
employ a mixed st andard of review. Commonwealth v. Pitts , 981 A.2d
875, 878 (Pa. 2009). We defer to the PCRA court’s factual findings and
credibility determinations supported by the record. Commonwealth v.

Henkel , 90 A.3d 16, 20 (Pa.Super. 2014) ( en banc ). In contrast, we review the PCRA court’s legal conclusions de novo

. Id.

“ When reviewing the grant or denial of post

- conviction relief, the
appellate court is limited to determining whether the lower court’s findings
are supported by the record and its order is otherw ise free of legal error.
We grant great deference to findings of the PCRA court.” Commonwealth

v. Stark , 658 A.2d 816, 818 (Pa.Super. 1995) (citations omitted ).

Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition. Co mmonwealth v. Robinson , 575 Pa. 500, 508, 837 A.2d 1157, 1161 (2003). The most recent amendments to the PCRA, effective January 16, 1996, provide a PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the un derlying judgment becomes final.J. S67010/16

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- 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz , 830 A.2d 1273, 1275 (Pa.Super. 2003); Commonwealth v. Vega , 754 A.2d 714, 717 (Pa.Super. 2000). A judgment is deemed final “at the conclusion of direct review, including d iscretionary 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.” 42 Pa.C.S.A. § 9545(b)(3).

Commonwealth v. Monaco , 996 A.2d 1076, 1079 (Pa.Super. 2010).
Subsequen t PCRA petitions beyond a petitioner’s first petition are
subject to the following standard:

A second or subsequent petition for post

- conviction relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred. Commonwealth v. Allen , 557 Pa. 135, 141, 732 A.2d 582, 586 (1999). A prima facie showing of entitlement to relief is made only by demonstrating either that the proceedings which resulted in conviction were so unfair that a miscarriage of justice occurred which no civilized society could tolerate, or the defendant’s innocence of the crimes for which he was charged. Allen , at 142, 732 A.2d at 586. Our standard of review for an order denying post

- conviction relief is limited to whether the trial court’s determination is supported by evidence of record and whether it is free of legal error. Commonwealth v. Jermyn , 551 Pa. 96, 709 A.2d 849, 856 (1998).
A PCRA petition, including a second or subsequent petition, must be filed w ithin one year of the date that judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final for purposes of the PCRA “at the conclusion of direct review, including discretionary review in the Supreme Court of the United States a nd the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.” 42 Pa.C.S.J. S67010/16

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- § 9545(b)(3). PCRA time limits are jurisdictional in nature, implicating a court’s very power to adjudicate a controversy. Commonwealth v. Fahy , 558 P a. 313, 737 A.2d 214 (1999). Accordingly, the “period 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, i.e. , by operat ion of one of the statutorily enumerated exceptions to the PCRA time

- bar. Id. at 329, 737 A.2d at 222.

Commonwealth v. Ali , 86 A.3d 173, 176

- 177 (Pa. 2014), cert. denied , 135 S.Ct. 707 (2014).

The three statutory exceptions to the timeliness provisions in the PCRA allow for very limited circumstances under which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition must allege and prove: (i) the failure to raise the claim previously was the resul t 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 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 States or the Supreme Court of Pennsylvania after the time pe riod provided in this section and has been held by that court to apply retroactively.J. S67010/16

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- 42 Pa.C.S.A. § 9545(b)(1)(i)

- (iii). “As such, when a PCRA petition is not filed within one year of the expiration of direct review, or not eligible for one of the three limited exceptions, or entitled to one of the exceptions, but not filed within 60 days of the date that the claim could have been first brought, the trial court has no power to address the substantive merits of a petitioner’s PCRA claims.” Commonwealth v

. Gamboa
- Taylor , 562 Pa. 70, 77, 753 A.2d 780, 783 (2000); 42 Pa.C.S.A. § 9545(b)(2).

Monaco , 996 A.2d at 1079

- 1080.
Here, appellant’s conviction became final on March 27, 1997, when his
ability to file a direct appeal ended. In order to timely file a P CRA petition,
appellant had to file the petition within one year of March 27, 1997. The
current petition was not filed until August 27, 2015, which was clearly
untimely. In order for the PCRA court to properly consider the current
petition, appellant mus t establish that the petition meets one of the three
exceptions to the one

- year requirement.
Appellant argues that the PCRA court is the government official who
has interfered with the presentation of his claim because it has ruled that

the motion to corr ect an illegal sentence must be treated as a PCRA petition
and was untimely. As the PCRA court states, the Pennsylvania Supreme
Court has held that “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satis fy the PCRA’s time limits
or one of the exceptions thereto.” Fahy , 737 A.2d at 223. Appellant cannot
claim governmental interference when a common pleas court judge correctly
applies the law regarding a timely petition.J. S67010/16

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Appellant also asserts that he di d not become aware that the PCRA
court could correct an unlawful sentence until March 15, 2013, and he filed
his motion to correct an illegal sentence on May 14, 2013. The current
petition was not filed until 2015, so this assertion is irrelevant. The PC RA
court did not err when it dismissed the petition as untimely. 5 Besides,
whether his sentence was illegal is not an “after

- discovered fact” that would
satisfy an exception to the one

- year time bar.

Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/6/2016

5 Because of the disposition of the timeliness issue, this court need not address appellant’s remaining issues.